Refinancing Amendments. (a) The Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders. (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto. (c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”). (d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment: (i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date), (ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans), (iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and (iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share. (e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that: (i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents, (ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect, (iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto), (iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld), (v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans, (vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder, (vii) [reserved] (viii) [reserved], (ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans, (x) [reserved], (xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and (xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply. (f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B). (g) [reserved]. (h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement. (i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).
Appears in 3 contracts
Samples: Credit Agreement (GFL Environmental Inc.), Credit Agreement (GFL Environmental Inc.), Credit Agreement (GFL Environmental Holdings Inc.)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) covenants or to the extent such other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date and (2) pricingDate, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the elects to add such more restrictive terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments other Facilities, or are otherwise reasonably acceptable to the Administrative Agent);
(and any vi) with respect to Refinancing Term Loans made pursuant thereto)secured by Liens on the Collateral that rank junior in right of security to the Initial Term Loans, andsuch Liens will be subject to a Permitted Junior Intercreditor Agreement;
(xiivii) notwithstanding there shall be no borrower (other than the foregoing, Refinancing Term Commitments of Borrower) and no guarantors (other than the kind described in Section 2.15(a)(A)(iiGuarantors (other than Holdings)) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of such Refinancing Term Loans;
(viii) Refinancing Term Loans shall become Commitments under this Agreement not be secured by any asset of the Borrower and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans may participate on a pro rata basis, or a less than pro rata basis than the Term Loans in any mandatory prepayments (other than as provided otherwise in the case of such prepayments pursuant to an amendment (a “Section 2.11(b)(2)) hereunder, as specified in the applicable Refinancing Amendment”.
(b) The Borrower may approach any Lender or any other person that would be a permitted Assignee pursuant to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing Section 9.04 to provide such Commitmentall or a portion of the Refinancing Term Loans; provided, if any, each Additional that any Lender agreeing offered or approached to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may at by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any time or from time to time Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the Closing date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that: (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date issueplus amounts used to pay fees, incur premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Facility Commitments so replaced (except to the extent such other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence, or the Borrower elects to add such more restrictive terms for the benefit of the other Facilities, or are otherwise obtain reasonably acceptable to the Administrative Agent); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors (other than Holdings)) in respect of such Replacement Revolving Facility; (vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral; and (vii) if such Replacement Revolving Facility is secured by Liens on the Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement. In addition, notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may establish Replacement Revolving Facility Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Facility Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement Revolving Facility Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted Assignee hereunder) so long as (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Facility Commitments, (ii) the remaining life to termination of such Replacement Revolving Facility Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Facility Commitments shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans, (iv) with respect to Replacement Revolving Loans secured by Liens on Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement, (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors (other than Holdings)) in respect of such Replacement Revolving Facility and (vi) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing banks and replacement swingline lender, if any, under such Replacement Revolving Facility) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date, or the Borrower elects to add such more restrictive terms for the benefit of the other Facilities, or are otherwise reasonably acceptable to the Administrative Agent). Solely to the extent that an Issuing Bank or the Swingline Lender is not a replacement issuing bank or a replacement swingline lender, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank or the Swingline Lender shall not be required to provide issue any letters of credit or swingline loan under such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Replacement Revolving Facility and, to the control extent it is necessary for such Issuing Bank or the Swingline Lender to withdraw as an Issuing Bank or the Swingline Lender, as the case may be, at the time of remedies) (the establishment of such notesReplacement Revolving Facility, “Permitted Pari Passu Secured Refinancing Debt”)such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank or the Swingline Lender, (B) secured Indebtedness in as the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loanscase may be, in its sole discretion. The Borrower agrees to reimburse each caseIssuing Bank or the Swingline Lender, that are secured on a pari passu or subordinated basis with as the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”)case may be, in each case, in exchange for, full upon demand for any reasonable and documented out-of-pocket cost or expense attributable to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)withdrawal.
Appears in 3 contracts
Samples: Credit Agreement (Westrock Coffee Co), Credit Agreement (Westrock Coffee Co), Incremental Assumption Agreement and Amendment No. 1 (Westrock Coffee Co)
Refinancing Amendments. (a) The Borrower may, at any time or from time to time after with the Closing Date, by notice to consent of the Administrative Agent Agent, obtain, from any Lender or any New Term Loan Lender, Credit Agreement Refinancing Indebtedness, to refinance all or any portion of the Loans and Commitments hereunder (a “Refinancing Loan Request”which for this purpose will be deemed to include any then New Term Loans), request pursuant to a Refinancing Amendment; provided (i) such Credit Agreement Refinancing Indebtedness will have such pricing, fees (including upfront fees and original interest discount (“OID”)), optional prepayment terms, redemption premiums and subordination terms as may be agreed by the establishment Borrower and the Lenders thereof, (ii) such Credit Agreement Refinancing Indebtedness, will have a maturity date that is not prior to the maturity date of one or more new Classes the Class of Term Loans under this Agreement (any such new Classbeing refinanced, “New Refinancing Term Commitments”) or (ii) increases and will have a Weighted Average Life to one or more existing Classes of term loans under this Agreement (any such increase Maturity that is not shorter than the remaining Weighted Average Life to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more Maturity of the existing Class or Classes of Term Loans or Commitments (with respect to a particular being refinanced, provided that in the case of Permitted Junior Priority Refinancing Term Commitment or Debt and Permitted Unsecured Refinancing Term LoanDebt, such existing Indebtedness will have a maturity date that is not prior to the 91st day after the maturity date of the Class of Term Loans being refinanced at the time of issuance or Commitmentsincurrence of such Credit Agreement Refinancing Indebtedness, “(iii) except as otherwise permitted herein, such Credit Agreement Refinancing Indebtedness will have terms and conditions taken as a whole that are no more favorable to the investors providing such Credit Agreement Refinancing Indebtedness than, the Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of ; provided further that the terms and conditions in this Section 2.15, (i) each applicable to such Credit Agreement Refinancing Term Lender of such Class shall make a Term Loan to Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower (a “and the investors thereof and applicable only during periods after the latest maturity date that is in effect on the date such Credit Agreement Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class Indebtedness is incurred or obtained and (iiiv) each the interest rate margins applicable to such Credit Refinancing Term Lender of such Class Indebtedness shall become a Lender hereunder with respect to be agreed between the Refinancing Term Commitment of such Class Borrower and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect theretoinvestors thereunder. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a6.01(i) and (b) shall be satisfied 6.06, and to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements delivered on the Closing Date (it being understood that all references to “the date of such Credit ExtensionEvent” or similar language in such Section 4.02 Sections shall be deemed to refer to the applicable effective date of such Refinancing Facility Closing DateAmendment),
(ii) each . Each Class of Credit Agreement Refinancing Term Commitment Indebtedness incurred under this Section 2.15 shall be in an aggregate principal amount that is not less than C$$50,000,000 and an integral multiple of $5,000,000 and in excess thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) deemed amended to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel but only to the Loan Parties, in each case, consistent with those delivered on extent) necessary to reflect the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, existence and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and amendments necessary to treat the Loans in respect thereof) shall be (taken and Commitments subject thereto as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Loans and/or New Term Commitments (and any Term Loans made pursuant theretoLoan Commitments), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(gb) [reserved].
(h) Any New Refinancing Term Commitment This Section 2.15 shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring supersede any Refinancing Term Loans, the Borrower may at any time provisions in Section 5.08 or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Section 14.01 to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 3 contracts
Samples: Refinancing Amendment (MRC Global Inc.), Term Loan Credit Agreement (MRC Global Inc.), Refinancing Amendment and Incremental Joinder Agreement (MRC Global Inc.)
Refinancing Amendments. (a) The Borrower mayIn addition, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Refinancing Loan Request”notwithstanding Sections 10.05(a), request (i) the establishment of one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments and (c), this Agreement may be designated a separate Class amended with the written consent of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by Borrower Representative and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of a tranche (“Refinanced Term Loans”) with a replacement term loan (“Replacement Term Loans”) hereunder; provided that (i) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (ii) the Applicable Margin with respect to such Replacement Term Loans (or similar interest rate spread applicable to such Replacement Term Loans) shall not be higher than the Applicable Margin for such Refinanced Term Loans (or similar interest rate spread applicable to such Refinanced Term Loans) immediately prior to such refinancing, (iii) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (iv) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing (and, without limiting the foregoing, the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel Collateral Agent are authorized to amend any Security Document to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order extent necessary to ensure that any Refinancing all such Term Commitment is Loans or Revolving Commitments are provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Security Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”Obligations).
Appears in 3 contracts
Samples: Credit and Guaranty Agreement (Fmsa Holdings Inc), Credit and Guaranty Agreement (Fmsa Holdings Inc), Credit and Guaranty Agreement (Fmsa Holdings Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), all cash proceeds from the incurrence, issuance or sale by the Borrower of which Refinancing Term Loans, net of all taxes paid or reasonably estimated to be payable, directly or indirectly, as a result thereof and fees (including investment banking fees, underwriting fees and discounts), commissions, costs and other expenses, in each casecase incurred in connection with such incurrence, established in exchange forissuance or sale, or are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any Loans (or one or more Class(es) of Loans). Each such notice shall specify the existing Class or Classes applicable Class(es) of Loans or Commitments being refinanced and the date (with respect to a particular Refinancing Term Commitment or Refinancing Term Loaneach, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is ; provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall Loans on the Refinancing Effective Date:
(xA) rank pari passu or junior the representations and warranties of Borrower set forth in right of payment this Agreement and the other Loan Documents shall be unsecured true and correct in all material respects (except in the case of any such representations and warranty that expressly relates to an earlier given date or rank pari passu or junior period, in right of security with which case such representation and warranty shall be true and correct in all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion material respects as of the Collateral on a pari passu basis with any of respective earlier date or respective period, as the foregoingcase may be); and
(B) any Incremental Equivalent Debt no Default shall have occurred and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,continuing;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Loans plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment, mandatory prepayment, amortization or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (when taken as a whole) no more favorable (whole and as reasonably determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower than, the terms (taken as a whole) applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) to the extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date then in effect or are otherwise reasonably acceptable to the Administrative Agent); provided that any Refinancing Term Loans that are unsecured or rank junior in right of security to the Initial Term Loans and the Term B-1 Loans shall not have scheduled amortization commencing prior to the Latest Maturity Date other than at a nominal rate;
(2vi) pricingwith respect to Refinancing Term Loans secured by Liens on the Collateral that rank junior in right of security to the Initial Term Loans and Term B-1 Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement;
(vii) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans (unless such other borrower or guarantor provides a Guarantee of the Obligations on terms reasonably acceptable to the Administrative Agent substantially concurrently with the making of such Refinancing Term Loans);
(viii) Refinancing Term Loans shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral (or assets that become Collateral substantially concurrently with the making of such Refinancing Term Loans); and
(ix) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments hereunder, as specified in the applicable Refinancing Amendment.
(b) Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its sole discretion); provided, that: (i) before and after giving effect to the establishment of such Replacement Revolving Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Commitments and any concurrent reduction in the aggregate amount of any other Revolving Commitments, the aggregate amount of Revolving Commitments shall not exceed the aggregate amount of the Revolving Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, rate floors, premiums, optional prepayment costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Commitments shall have a final maturity date (or redemption termsrequire commitment reductions or amortizations) unless prior to the Revolving Facility Commitment Termination Date for the Revolving Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and conditions reflect market prepayment and commitment reduction and optional redemption terms which shall be as agreed between the applicable Borrower and conditions for the Lenders providing such Refinancing Term Replacement Revolving Commitments and (y) the amount of any letter of credit sublimit under such Replacement Revolving Facility, which shall be as agreed between the applicable Borrower, the Lenders providing such Replacement Revolving Commitments, the Administrative Agent and the replacement issuing bank, if any, under such Replacement Revolving Commitments) taken as a whole shall (as determined by the applicable Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and the Subsidiaries than, those applicable to the Revolving Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the latest Maturity Date with respect to the Revolving Commitments in effect at the time of incurrence or issuance thereof are otherwise reasonably acceptable to the Administrative Agent); and (v) there shall be no borrower (other than the Borrowers) and no guarantors (other than the Guarantors) in each caserespect of such Replacement Revolving Facility; and (vi) Replacement Revolving Commitments and extensions of credit thereunder shall not be secured by any asset of Borrower and its Subsidiaries other than the Collateral. Solely to the extent that an Issuing Bank is not a replacement issuing bank under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank shall not be required to issue any letters of credit under such Replacement Revolving Facility and, to the extent it is necessary for such Issuing Bank to withdraw as an Issuing Bank, as determined by the case may be, at the time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank in its sole discretion. The Borrower agrees to reimburse each Issuing Bank in good faith)full upon demand, for any reasonable and documented out-of-pocket cost or expense attributable to such withdrawal.
(c) The Borrower may approach any Lender or any other person that would be a permitted assignee pursuant to Section 9.04 to provide all or a portion of the Refinancing Term Loans or Replacement Revolving Commitments; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit Lender offered or approached to provide all or a portion of the Term Commitments (and any Refinancing Term Loans made pursuant thereto)or Replacement Revolving Commitments may elect or decline, and
(xii) notwithstanding the foregoingin its sole discretion, to provide a Refinancing Loan or Replacement Revolving Commitments. Any Refinancing Term Loans or Replacement Revolving Commitments made on any Refinancing Effective Date shall be designated an additional Class of Loans for all purposes of this Agreement; provided, further, that any Refinancing Term Loans or Replacement Revolving Commitments may, to the kind described extent provided in Section 2.15(a)(A)(ii) (and the applicable Refinancing Amendment governing such Refinancing Term Loans or Replacement Revolving Commitments, be designated as an increase in any previously established Class of Loans made pursuant thereto) shall form part of to the same Class as, and have identical terms to, the applicable Class of Term Loans to which they applyBorrower.
(fd) Commitments in respect of Any Borrower and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Commitments (as applicable) shall become Commitments under execute and deliver to the Administrative Agent an amendment to this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, and such other documentation as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative AgentAgent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Commitments (as applicable). The Refinancing Amendment may, without the consent For purposes of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may Documents, if a Lender is providing a Refinancing Term Loan, such Lender will be necessary deemed to have an Other Term Loan having the terms of such Refinancing Term Loan. Notwithstanding anything to the contrary set forth in this Agreement or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of any other Loan Document (including without limitation this Section 2.15. The Borrower will use the proceeds2.19), if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu no Refinancing Term Loan or Replacement Revolving Commitment is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of incurring any Refinancing Term Loans, the Borrower may Loan or Replacement Revolving Commitment at any time or from time to time after the Closing Date issueother than those set forth in clauses (a) or (b) above, incur or otherwise obtain as applicable, and (it being understood that no Lender iii) all Refinancing Term Loans, Replacement Revolving Commitments and all obligations in respect thereof shall be required Obligations under this Agreement and the other Loan Documents that rank equally and ratably in right of security with the Initial Term Loans, the Term B-1 Loans and other Obligations (other than Refinancing Term Loans or Replacement Revolving Commitments that rank junior in right of security, and except to provide the extent any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one Refinancing Term Loans or more series of senior secured notes that Replacement Revolving Commitments are secured by the Collateral on a pari passu junior lien basis in accordance with the Obligations provisions above). Upon the effectiveness of any Refinancing Amendment, this Agreement shall be amended without the consent of any other Lenders to the extent (but without regard only to the control extent) necessary to reflect the existence and terms of remedies) (the Refinancing Term Loans or Replacement Revolving Commitments evidenced thereby as provided for in Section 9.02. Any such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness deemed amendment may be memorialized in writing by the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis Administrative Agent with the Obligations Borrower’s consent (such notes or loans, “Permitted Junior Secured Refinancing Debt”not to be unreasonably withheld) and (C) senior unsecured or subordinated unsecured Indebtedness in furnished to the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)other parties hereto.
Appears in 3 contracts
Samples: Credit Agreement (Frontier Communications Corp), Credit Agreement (Frontier Communications Corp), Increase Joinder (Frontier Communications Corp)
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Borrowers may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Loan Request”), request (i) Indebtedness in respect of all or any portion of the establishment of one or more new Classes of Term Loans then outstanding under this Agreement (which for purposes of this clause (a) will be deemed to include any such new Classthen outstanding Other Term Loans, “New Refinancing Term Commitments”) Loans or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Extended Term Commitments, “Refinancing Term Commitments”Loans), in each casethe form of Other Term Loans or Other Term Loan Commitments pursuant to a Refinancing Amendment; provided that (A) such Credit Agreement Refinancing Indebtedness will rank pari passu in right of payment and of Collateral with the other Loans and Commitments hereunder, established (B) such Credit Agreement Refinancing Indebtedness will have such pricing and optional prepayment terms as may be agreed by the Borrowers and the Lenders thereof (provided that such Credit Agreement Refinancing Indebtedness may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in exchange forany voluntary or mandatory prepayments hereunder, as specified in the applicable Refinancing Amendment), (C) such Credit Agreement Refinancing Indebtedness will have a maturity date later than the maturity date of, and will have a Weighted Average Life to Maturity that is not shorter than, the Term Loans being refinanced, (D) subject to clauses (B) and (C) above, such Credit Agreement Refinancing Indebtedness will have terms and conditions that are substantially identical to, or less favorable to extend, renew, replace, repurchase, retire or refinance, in whole or in part, (as selected reasonably determined by the BorrowerBorrowers) the lenders or investors providing such Credit Agreement Refinancing Indebtedness than, any one or more the Refinanced Debt and (E) the proceeds of such Credit Agreement Refinancing Indebtedness shall be applied, substantially concurrently with the existing Class or Classes incurrence thereof, to the prepayment of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing outstanding Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of being so refinanced; provided further that the terms and conditions in this Section 2.15, (i) each applicable to such Credit Agreement Refinancing Term Lender of such Class shall make a Term Loan to Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class Borrowers and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from Lenders thereof and applicable only during periods after the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect theretothen Latest Maturity Date. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Section 5.2 (and for purposes thereof the incurrence of the Credit Agreement Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 Indebtedness shall be deemed to refer be a irrevocable notice pursuant to the applicable Refinancing Facility Closing Date),
(iiSection 2.2) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) and, to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) of customary officer’s certificates and legal opinions, board resolutions and (II) customary opinions of counsel to the Loan Partiesofficers’ certificates, in each case, case consistent with those delivered on the Closing Date under Section 5.1 (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), (Band customary reaffirmation agreements. Each Tranche of Credit Agreement Refinancing Indebtedness incurred under this Section 2.29(a) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the in an aggregate principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall is (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt not less than $25,000,000 and (y) may not be (I) if securedan integral multiple of $1,000,000 in excess thereof, secured unless otherwise agreed by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Other Term Loans and/or Other Term Loan Commitments).
(b) Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerBorrowers, to effect the provisions of this Section. Notwithstanding the foregoing, the Administrative Agent shall have the right (but not the obligation) to seek the advice or concurrence of the Required Lenders with respect to any matter contemplated by this Section 2.15. The Borrower will use the proceeds2.29 and, if anythe Administrative Agent seeks such advice or concurrence, of it shall be permitted to enter into such amendments with the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, Borrowers in accordance with Section 2.05(b)(iii)(B)any instructions actually received by such Required Lenders and shall also be entitled to refrain from entering into such amendments with the Borrowers unless and until it shall have received such advice or concurrence; provided, however that whether or not there has been a request by the Administrative Agent for any such advice or concurrence, all such amendments entered into with the Borrowers by the Administrative Agent hereunder shall be binding and conclusive on the Lenders.
(gc) [reserved].
(h) Any New Refinancing Term Commitment This Section 2.29 shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring supersede any Refinancing Term Loans, the Borrower may at any time provisions in Section 2.18 or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard 10.1 to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 2 contracts
Samples: Credit Agreement (Vince Holding Corp.), Credit Agreement (Apparel Holding Corp.)
Refinancing Amendments. (a) The Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of one or more new Classes of Term Loans under this Agreement (any such new ClassIn addition, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”notwithstanding Sections 10.5(a), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments and (c), this Agreement may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to amended with the satisfaction written consent of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing the Replacement Term Loans (as defined below) to permit the refinancing of all or a part of the outstanding Term Loans (“Refinanced Term Loans,
”) with a replacement term loan (vi“Replacement Term Loans”) hereunder; provided that (A) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments aggregate principal amount of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing such Replacement Term Loans shall not have a greater principal amount than exceed the aggregate principal amount of such Refinanced Term Loans plus accrued interest, fees and premiums (if any) thereon and reasonable fees and expenses associated with the refinancing, (B) the Weighted Average Yield applicable to the Replacement Term Loans shall not be greater than the applicable Weighted Average Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Refinanced Debt plus any accrued but unpaid interest and fees on Term Loans immediately prior to such refinancing, (C) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated Term Loans at the time of incurrence such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (D) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(ii) In addition, notwithstanding Sections 10.5(a), (b) and (c), this Agreement may be amended with the written consent of the Revolving Facility Administrative Agent, Borrower and the Lenders providing the Replacement Revolving Loans (as defined below) to permit the refinancing of all or a part of the outstanding Revolving Loans (“Refinanced Revolving Loans”) and Revolving Commitments (“Refinanced Revolving Commitments”, together with the Refinanced Revolving Loans thereunder, the “Refinanced Revolving Facility”) with replacement revolving loans (“Replacement Revolving Loans”) and replacement revolving commitments (“Replacement Revolving Commitments”, together with the Replacement Revolving Loans thereunder, the “Replacement Revolving Facility”) hereunder; provided that (A) the aggregate principal amount of such new Indebtedness plus Replacement Revolving Facility shall not exceed the aggregate principal amount of any premium or penalty or premium required such Refinanced Revolving Facility, (B) the Weighted Average Yield applicable to the Replacement Revolving Facility shall not be paid under greater than the applicable Weighted Average Yield payable pursuant to the terms of this Agreement as amended through the instrument or documents governing date of such calculation with respect to the Refinanced Revolving Facility immediately prior to such refinancing, (C) the weighted average life to maturity of such Replacement Revolving Facility shall not be shorter than the weighted average life to maturity of such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments Revolving Facility at the time of incurrence such refinancing and (D) all other terms applicable to such Replacement Revolving Facility shall be substantially identical to, or issuance thereof (in each caseless favorable to the Lenders providing such Replacement Revolving Facility than, as determined by those applicable to such Refinanced Revolving Facility, except to the Borrower in good faith); provided, that extent necessary to provide for covenants and other terms applicable to any period after the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit latest final maturity of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Revolving Loans in exchange for, or effect immediately prior to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B)such refinancing.
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Nord Anglia Education, Inc.), Credit and Guaranty Agreement (Nord Anglia Education, Inc.)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.08(c), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the Borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Maturity Date maturity date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms (optional prepayment or mandatory prepayment or redemption terms shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans;
(vii) Refinancing Term Loans shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral;
(viii) Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or on a less than a pro rata basis (but not on a greater than a pro rata basis except basis) in any mandatory prepayments (other than as provided otherwise in the case of a prepayment under such prepayments pursuant to Section 2.05(b)(iii)(B2.08(c)) hereunder, as specified in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],the applicable Refinancing Amendment; and
(ix) Refinancing Term Loans shall not at any time have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as any financial maintenance covenants of a different type than the financial covenants set forth abovein Section 6.10, or any financial maintenance covenants that are more restrictive than the material terms and conditions of any such Refinancing Term Commitments financial covenants set forth in Section 6.10 or (and the Loans in respect thereofy) shall be (negative covenants and/or default provisions that, taken as a whole) no , are materially more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments restrictive than those applicable to the applicable Refinanced Debt Revolving Facility as determined in good faith by the Borrower unless, in each case of clauses (except for (1x) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2y) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements) for so long as any such Refinancing Term Commitments at Loans are outstanding or (II) become applicable only after the time Revolving Facility shall have matured or been terminated.
(b) The Borrower may approach any Lender or any other person that would be a permitted assignee pursuant to Section 9.05 to provide all or a portion of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith)Refinancing Term Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may at any time or from time by written notice to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of Administrative Agent establish one or more series of senior secured notes that are secured on a pari passu basis with additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the Obligations (but without regard to the control of remedies) (such notesrevolving loans thereunder, “Permitted Pari Passu Secured Refinancing DebtReplacement Revolving Loans”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, which replace in whole or in partpart any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, any existing Class a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or Classes of Loans (such Loansshorter period agreed to by the Administrative Agent in its reasonable discretion); provided, “Refinanced Loans”).that:
Appears in 2 contracts
Samples: Credit Agreement (Iac/Interactivecorp), Credit Agreement (Match Group, Inc.)
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Restatement Effective Date, by notice to the Administrative Agent (a “Borrower may obtain from any Lender or any Additional Lender Credit Agreement Refinancing Loan Request”), request (iIndebtedness in respect of all or any portion of any Class(es) of the establishment of one or more new Classes of Term Loans then outstanding under this Agreement (which for this purpose will be deemed to include any such new Classthen outstanding Class(es) of Loans, “New Extended Term Loans, Refinancing Term Commitments”) Loans or (ii) increases to one Incremental Term Loans), in the form of Refinancing Term Loans or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “in each case pursuant to a Refinancing Term Commitments”Amendment; provided that such Credit Agreement Refinancing Indebtedness (i) will rank pari passu in right of payment and of security with the other Loans and Commitments hereunder, (ii) have such pricing and optional prepayment terms as may be agreed by the Borrower and the Lenders thereof, (iii) except as otherwise provided in Sections 2.05(a)(i), in each case, established in exchange for, 2.05(b)(iii) and 2.05(c)(i) or as may be agreed to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the BorrowerLenders and Additional Lenders providing such Credit Agreement Refinancing Indebtedness in the respective Refinancing Amendment, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for shall be prepaid and repaid (or offered to be repaid in the case of Section 2.05(c)) on a pro rata basis with all purposes voluntary prepayments and mandatory prepayments (other than amortization payments) of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments the other Classes of any Class are effectedLoans and (iv) otherwise be treated hereunder no more favorably, subject including with respect to covenants and events of default, than the satisfaction of Refinanced Debt; provided further that the terms and conditions in this Section 2.15, (i) each applicable to such Credit Agreement Refinancing Term Lender of such Class shall make a Term Loan to Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from Lenders thereof and applicable only during periods after the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender Latest Maturity Date that is an Affiliated Lender in effect on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) obtained. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) Amendment and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) and, to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (A) (Ii) customary officer’s certificates and legal opinions, board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, officers’ certificates consistent with those delivered on the Closing Restatement Effective Date (conformed as appropriate) 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, Agent and (Cii) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Collateral Agent (including Mortgage amendments, if applicable) in order to ensure that any the Credit Agreement Refinancing Term Commitment Indebtedness is provided with the benefit of the applicable Loan Documents, and
(iv) the . Each tranche of Credit Agreement Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans Indebtedness incurred under this Section 2.15 shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the in an aggregate principal amount that is not less than $50,000,000. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions Refinancing Amendment. Each of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation parties hereto hereby agrees that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, and the other Loan Documents, executed by the Borrower, each existing Lender agreeing Documents may be amended pursuant to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The a Refinancing Amendment mayAmendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Refinancing Term Loans and/or Refinancing Term Commitments), (ii) provide certain class protection to the Lenders and Additional Lenders providing such Credit Agreement Refinancing Indebtedness with respect to voluntary prepayments and mandatory prepayments, (iii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of the second paragraph of Section 10.01 and (iv) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinanceSection, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, Required Lenders hereby expressly authorize the Borrower may at any time or from time Administrative Agent to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide enter into any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Amendment.
Appears in 2 contracts
Samples: Credit Agreement (Michaels Companies, Inc.), Credit Agreement (Michaels Stores Inc)
Refinancing Amendments. (a) The At any time after the Restatement Effective Date, the Borrower may, at any time or from time to time after the Closing Date, by written notice to the Administrative Agent (a “Refinancing Loan Request”)Agent, request (i) the establishment of one or more new Classes additional classes of Term Loans term loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases an increase to one or more an existing Classes class of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or ) to extendrefinance, renew, replace, repurchase, retire defease or refinance, in whole refund all or in part, as selected by the Borrower, a portion of any one or more of the existing Class or Classes class of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.then outstanding; provided that:
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision net proceeds of such Refinancing Term Loans is an assignment shall be applied, concurrently or substantially concurrently with the incurrence thereof, solely to the pro rata repayment of such the outstanding class of Loans or other Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),so refinanced;
(ii) each class of Refinancing Term Commitment Loans shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof (or such other amount necessary to repay any class of outstanding Loans or Refinancing Term Loans in full);
(iii) such Refinancing Term Loans shall be in an aggregate principal amount that is not less greater than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding aggregate principal amount of Refinanced Debt that is in the form of Loans or other Refinancing Term Loans),
(iii) Loans to the extent reasonably requested by the Administrative Agentbe refinanced or replaced, the receipt by the Administrative Agent (A) (I) customary officer’s certificates plus any accrued interest, premium, fees and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent expenses related thereto (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, andoriginal issue discount or upfront fees);
(iv) the final maturity date of such Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing no earlier than the Maturity Date of outstanding the Loans or other Refinancing Term Loans under being refinanced (or, in the respective Class so incurred on a pro rata basis (based on case of any unsecured or second lien Refinancing Term Loans, no earlier than the principal amount date 91 days after the Maturity Date of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term the Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of or other the Refinancing Term Commitments (Loans so being refinanced), and the Weighted Average Life to Maturity of such Refinancing Term Loans in respect shall be no shorter than the then remaining Weighted Average Life to Maturity of each class of Loans or Refinancing Term Loans being refinanced;
(v) the foregoing)pricing, of any Class rate floors, discounts, fees and optional and mandatory prepayment or redemption provisions applicable to such Refinancing Term Loans shall be as agreed between the Borrower and each Person with a commitment for a Refinancing Term Loan (each, a “Refinancing Term Lender”) so long as, in the lenders providing case of any mandatory prepayment or redemption provisions, such Refinancing Term Commitments; provided, that:Lenders do not participate on a greater than pro rata basis in any mandatory prepayments as compared to the Lenders;
(ivi) the covenants, other terms and security documents applicable to such Refinancing Term Commitments Loans (excluding those terms described in the immediately preceding clause (v)), shall be (1) substantially identical to, or (taken as a whole) not materially less favorable to the Borrower than those applicable to the class of Loans being refinanced or replaced, except to the extent such covenants and other terms (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (apply solely to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than period after the Maturity Date of the applicable Refinanced Debt as then Loans existing at the time of such refinancing or replacement (or, in effect,
(iii) the case of any unsecured or second lien Refinancing Term Loans shall have a Weighted Average Life to Loans, after the date 91 days after the Maturity of no less than Date), (y) are incorporated into this Agreement and the Weighted Average Life to Maturity as then in effect other Loan Documents for the applicable Refinanced Debt benefit of all existing Lenders (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment it being understood and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by agreed that the Borrower and the Lenders thereunder; provided that Administrative Agent may amend the Loan Documents to reflect such changes without the consent of any other person, or (z) are consistent with the then-prevailing market convention, as determined in good faith by the Borrower, or (2) otherwise reasonably satisfactory to the Administrative Agent;
(vii) no Restricted Subsidiary is a currency other than Canadian Dollars and U.S. Dollars borrower or a guarantor with respect to such Refinancing Term Loans unless such Restricted Subsidiary is or becomes a Loan Party;
(viii) any Unrestricted Subsidiary shall be an “unrestricted subsidiary” under the terms of any Refinancing Term Loans;
(ix) no existing Lender shall be required to provide any Refinancing Term Loans;
(x) any secured Refinancing Term Loans (1) shall be subject to the consent of an Intercreditor Agreement or another intercreditor agreement reasonably acceptable to the Administrative Agent and (if applicable) the ABL Agent (including, as applicable, with respect to the ABL Facility) and other reasonably customary documentation on terms reasonably satisfactory to the Administrative Agent and (2) shall not be secured by any assets that do not also constitute Collateral for the Facility (and shall not be secured on a basis senior to be unreasonably withheld),that of the Liens in favor of the Secured Parties under the Loan Documents with respect to any Collateral, including any Collateral covered by an Intercreditor Agreement) and shall not have a more senior lien priority than the Facility being so refinanced;
(vxi) both before and after any such incurrence, the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on such date of issuance or incurrence, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date; and
(xii) the interest rate (including margin and floors) applicable documentation with respect to any Refinancing Term Loans will be determined by reasonably satisfactory to the Borrower Borrower, the Administrative Agent and the Lenders institutions providing such Refinancing Term Loans,.
(vib) Each such notice shall specify (x) the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loans may provide for be made, which shall be a date reasonably acceptable to the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder Administrative Agent and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except y) in the case of Refinancing Term Loans, the identity of the Persons (each of which shall be a prepayment under Section 2.05(b)(iii)(BPerson that would be an Eligible Assignee (for this purpose treating a Lender of Refinancing Term Loans as if it were an assignee)) in any mandatory repayments or prepayments of principal of whom the Borrower proposes would provide the Refinancing Term Loans hereunder,and the portion of the Refinancing Term Loans to be provided by each such Person. On each Refinancing Effective Date, each Refinancing Term Lender shall make a Refinancing Term Loan to the Borrower in a principal amount equal to such Person’s commitment therefor.
(viic) [reserved]
(viii) [reserved],
(ix) This Section 2.14 shall supersede any provisions in Section 2.11 or Section 11.01 to the contrary. The Refinancing Term Loans shall not have be documented by a greater principal amount than Refinancing Amendment executed by the principal amount of Persons providing the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments Loans (and the Loans other Persons specified in respect thereof) shall be (taken as a whole) the definition of “Refinancing Amendment” but no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant theretoexisting Lender), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to Amendment may provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.152.14. The effectiveness of any Refinancing Amendment shall be subject to the satisfaction on the date thereof of conditions consistent with the conditions in Section 4.01 and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates substantially consistent with those delivered on the Restatement Effective Date (conformed as appropriate) or otherwise in form and substance reasonably satisfactory to the Administrative Agent and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Refinancing Term Loan is provided with the benefit of the applicable Loan Documents.
(d) Notwithstanding anything to the contrary contained in this Section 2.14 or elsewhere in this Agreement, the Borrower may elect to issue any notes or loans, in each case which will use be pari passu or junior in right of payment and be secured by the proceedsCollateral on a pari passu or junior Lien basis (and if so secured, shall be subject to an Intercreditor Agreement or another intercreditor agreement reasonably acceptable to the Administrative Agent and, if anyapplicable, the ABL Agent with respect to any such security in the Collateral, and in no event secured on a basis senior to the Obligations with respect to any such Collateral) or which will be unsecured, issued pursuant to one or more indentures, note purchase agreements or other agreements in lieu of the Refinancing Term Loans in exchange for, or to extendrefinance, renew, replace, repurchase, retire defease or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(Brefund all or a portion of any class of Loans then outstanding (“Refinancing Notes”).
(g) [reserved].
(h) Any New ; provided that such Refinancing Term Commitment Notes shall be designated a separate Class of Term Loans for all purposes of this Agreement.
consistent with the provisions and requirements set forth in subsection (ia) In lieu of incurring any above with respect to Refinancing Term Loans, including the Borrower may at any time or from time use of the proceeds thereof to time after repay the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (Loans or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Term Loans, “Refinanced Loans”).
Appears in 2 contracts
Samples: Conforming Changes Amendment (Hyster-Yale Materials Handling, Inc.), Term Loan Credit Agreement (Hyster-Yale Materials Handling, Inc.)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.12(g), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the Borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 5.2 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the maturity date of the refinanced Term Loans;
(iii) the weighted average life to maturity of such Refinancing Term Loans shall be no shorter than the then-remaining weighted average life to maturity of the refinanced Term Loans;
(iv) the aggregate principal amount of the Refinancing Term Loans shall not mature earlier than exceed the Maturity Date outstanding principal amount of the applicable Refinanced Debt as then in effect,
(iii) Refinancing refinanced Term Loans shall have a Weighted Average Life plus amounts used to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discountspay fees, premiums, fees, optional prepayment costs and redemptions terms and, subject to clauses expenses (iiincluding original issue discount) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms (optional prepayment or mandatory prepayment or redemption terms shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) to the extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (2other than the Guarantors) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for in respect of such Refinancing Term Commitments at Loans;
(vii) Refinancing Term Loans shall not be secured by any asset of the time Borrower and its subsidiaries other than the Collateral; and
(viii) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the case of incurrence or issuance thereof (in each casesuch prepayments pursuant to Section 2.12(g)) hereunder, as determined by specified in the applicable Refinancing Amendment.
(b) The Borrower in good faith)may approach any Lender or any other person that would be a permitted assignee pursuant to Section 10.6 to provide all or a portion of the Refinancing Term Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate Class an additional class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may at any time or from time by written notice to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of Administrative Agent establish one or more series of senior secured notes that are secured on a pari passu basis with additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the Obligations (but without regard to the control of remedies) (such notesrevolving loans thereunder, “Permitted Pari Passu Secured Refinancing DebtReplacement Revolving Loans”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, which replace in whole or in partpart any class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, any existing Class a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or Classes of Loans (such Loansshorter period agreed to by the Administrative Agent in its reasonable discretion); provided, “Refinanced Loans”).that:
Appears in 2 contracts
Samples: Credit Agreement (Engility Holdings, Inc.), Credit Agreement (Engility Holdings, Inc.)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(i)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments Loans on the Refinancing Effective Date each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans;
(iii) the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no shorter than the then-remaining Weighted Average Life to Maturity of the refinanced Term Loans;
(iv) the aggregate principal amount of the Refinancing Term Loans incurred pursuant to this Section 2.23 shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(v) the covenants and events of default applicable to such Refinancing Term Loans taken as a whole shall (xas determined by Parent in good faith) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to Parent and its Subsidiaries than, the Borrower terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Guarantors Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding);
(vi) [reserved];
(vii) there shall be no borrower (other than the Borrower) and no guarantors (other than the Loan Documents,Parties or entities that become Loan Parties) in respect of such Refinancing Term Loans;
(iiviii) Refinancing Term Loans shall not mature earlier be secured by any asset of Parent or any of its subsidiaries other than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms Collateral; and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.11(b)(i)(2)) hereunder, as specified in the applicable Refinancing Amendment.
(b) The Borrower may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) The Borrower may and each Lender providing the applicable Refinancing Term Loans shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans. For purposes of this Agreement and the other Loan Documents, if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.23), (i) the aggregate amount of Refinancing Term Loans will not be included in the calculation of clause (I)(a) or (II)(a) of the definition of “Incremental Amount”, (ii) no Refinancing Term Loan is required to be in any minimum amount or any minimum increment, (iii) there shall be no condition to any incurrence of any Refinancing Term Loan at any time or from time to time after the Closing Date issue, incur or otherwise obtain other than those set forth in clause (it being understood that no Lender a) above and (iv) all Refinancing Term Loans and all obligations in respect thereof shall be required to provide any such Indebtedness) (A) secured Indebtedness Loan Obligations under a separate agreement this Agreement and the other Loan Documents that rank equally and ratably in the form right of one or more series of senior secured notes that are secured on a pari passu basis security with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or Initial Term Loans and other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Loan Obligations.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Spirit AeroSystems Holdings, Inc.), Term Loan Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each caseone or more additional Facilities (each, established in exchange fora “Refinancing Revolving Facility”) providing for revolving credit commitments (“Refinancing Revolving Credit Commitments” and the revolving loans thereunder, “Refinancing Revolving Loans”) or Refinancing Notes pursuant to extendprocedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower, renew, replace, repurchase, retire or refinance, all Net Proceeds of which are used to refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or any class of Revolving Credit Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loaneach, a “Refinancing Term Lender” and, collectively, “Refinancing LendersEffective Date”).
(d) The effectiveness of any Refinancing Amendment, and on which the Borrower proposes that the Refinancing Term Loans, the Refinancing Revolving Credit Commitments thereunder, or Refinancing Notes shall be subject made or become effective, as applicable, which shall be a date not earlier than five (5) Business Days after the date on which such notice is delivered to the satisfaction on the date thereof Administrative Agent (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in or such Refinancing Amendment:
(i) after giving effect shorter period agreed to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before and immediately after giving effect to the borrowing of such Refinancing Term Loans and the establishment of any Refinancing Revolving Credit Commitments shall (x) rank pari passu or junior on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans or Refinancing Notes shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans and no Refinancing Revolving Credit Commitment shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Credit Commitments being refinanced;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) (A) the currencyaggregate principal amount of the Refinancing Term Loans or Refinancing Notes shall not exceed the outstanding principal amount of the refinanced Term Loans and (B) after giving effect to the establishment of any Refinancing Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, discountsthe aggregate amount of the Refinancing Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Effective Date, in each case under clauses (A) or (B) above, plus amounts used to pay fees, premiums, fees, optional prepayment costs and redemptions terms and, subject to clauses expenses (iiincluding original issue discount) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will Loans, Refinancing Revolving Facility or Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi, Refinancing Revolving Credit Commitments or Refinancing Notes, as applicable) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Refinancing Lenders providing Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Initial Term B Loans (except to the extent such covenants and other terms apply solely to any period after the then applicable Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Refinancing Term Commitments Loans, Refinancing Revolving Facilities or Refinancing Notes may contain any financial maintenance covenants, so long as any such covenant shall not be more restrictive to the Borrower than (or in addition to) those applicable to the applicable Refinanced Debt Term Loans or Revolving Credit Commitment then outstanding (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall covenants are also apply added for the benefit of the Term Commitments (and any Lenders, which shall not require consent of the Lenders holding the Term Loans made pursuant theretoor Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement effective on such Refinancing Effective Date);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans, Refinancing Revolving Facilities and Refinancing Notes;
(vii) Refinancing Term Loans, Refinancing Revolving Credit Commitments and Refinancing Notes shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral; and
(xiiviii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described Loans and Refinancing Notes may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class asany mandatory prepayments hereunder, and have identical terms to, as specified in the applicable Class of Term Loans to which they applyRefinancing Amendment.
(fb) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing Section 9.04 to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange forLoans, Refinancing Revolving Credit Commitments or Refinancing Notes; provided, that any Lender offered or approached to extendprovide all or a portion of the Refinancing Term Loans, renew, replace, repurchase, retire Refinancing Revolving Credit Commitments or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced DebtRefinancing Notes may elect or decline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan, Refinancing Revolving Credit Commitments or Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional Facilities (each, a “Replacement Revolving Facility”) providing for revolving commitments (“Replacement Revolving Credit Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Credit Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that (i) immediately before and immediately after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied, (ii) after giving effect to the establishment of any Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Credit Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Credit Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to fees, interest rates and other pricing terms) and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Credit Commitments and taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date in effect at the time of incurrence or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Replacement Revolving Facilities may contain any financial maintenance covenants, so long as any such covenant shall not be tighter than (or in addition to) those applicable to the Term Loans or Revolving Credit Commitment then outstanding (unless such covenants are also added for the benefit of the Lenders holding the Term Loans or Revolving Credit Commitments then outstanding, which shall not require consent of the Lenders holding the Term Loans or Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement upon the applicable Replacement Revolving Facility Effective Date); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantor) in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Credit Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral.
(d) The Borrower may approach any Lender or any other Person that would be a permitted assignee of a Revolving Credit Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Credit Commitments for all purposes of this Agreement; provided that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Credit Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans, Refinancing Revolving Credit Commitments and/or Replacement Revolving Credit Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify and is reasonably acceptable to the Borrower to evidence such Refinancing Term Loans, Refinancing Revolving Credit Commitments and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan, (B) if a Lender is providing a Refinancing Revolving Credit Commitment, such Lender will be deemed to have an Other Revolving Credit Commitment having the terms of such Refinancing Revolving Credit Commitment and (C) if a Lender is providing a Replacement Revolving Credit Commitment, such Lender will be deemed to have an Other Revolving Credit Commitment having the terms of such Replacement Revolving Credit Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.20), (i) no Refinancing Term Loan, Refinancing Revolving Credit Commitment or Replacement Revolving Credit Commitment is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of any Refinancing Term Loan, Refinancing Revolving Credit Commitment or Replacement Revolving Credit Commitment at any time or from time to time after the Closing Date issueother than those set forth in clauses (a) or (c) above, incur or otherwise obtain as applicable, and (it being understood that no Lender iii) all Refinancing Term Loans, Refinancing Revolving Credit Commitments, Replacement Revolving Credit Commitments and all obligations in respect thereof shall be required to provide any such Indebtedness) (A) secured Indebtedness Obligations under a separate agreement this Agreement and the other Loan Documents that rank equally and ratably in the form right of one or more series of senior secured notes that are secured on a pari passu basis security with the Obligations (but without regard other Secured Obligations. Notwithstanding anything to the control of remedies) (such notescontrary, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness this Section 2.20 shall supersede any provisions in Section 2.15 or Section 9.02 to the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 2 contracts
Samples: Credit Agreement (Xperi Holding Corp), Credit Agreement (Xperi Corp)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.08(c), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the Borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Maturity Date maturity date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms (optional prepayment or mandatory prepayment or redemption terms shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans;
(vii) Refinancing Term Loans shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral; and
(viii) Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or on a less than a pro rata basis (but not on a greater than a pro rata basis except basis) in any mandatory prepayments (other than as provided otherwise in the case of a prepayment under such prepayments pursuant to Section 2.05(b)(iii)(B2.08(c)) hereunder, as specified in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],the applicable Refinancing Amendment; and
(ix) Refinancing Term Loans shall not at any time have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as any financial maintenance covenants of a different type than the financial covenants set forth abovein Section 6.10, or any financial maintenance covenants that are more restrictive than the material terms and conditions of any such Refinancing Term Commitments financial covenants set forth in Section 6.10 or (and the Loans in respect thereofy) shall be (negative covenants and/or default provisions that, taken as a whole) no , are materially more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments restrictive than those applicable to the applicable Refinanced Debt Revolving Facility as determined in good faith by the Borrower unless, in each case of clauses (except for (1x) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2y) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements) for so long as any such Refinancing Term Commitments at Loans are outstanding or (II) become applicable only after the time Revolving Facility shall have matured or been terminated.
(b) The Borrower may approach any Lender or any other person that would be a permitted assignee pursuant to Section 9.05 to provide all or a portion of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith)Refinancing Term Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may at any time or from time by written notice to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of Administrative Agent establish one or more series of senior secured notes that are secured on a pari passu basis with additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the Obligations (but without regard to the control of remedies) (such notesrevolving loans thereunder, “Permitted Pari Passu Secured Refinancing DebtReplacement Revolving Loans”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, which replace in whole or in partpart any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, any existing Class a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or Classes of Loans (such Loansshorter period agreed to by the Administrative Agent in its reasonable discretion); provided, “Refinanced Loans”).that:
Appears in 2 contracts
Samples: Incremental Assumption Agreement and Amendment No. 1 (Match Group, Inc.), Incremental Assumption Agreement and Amendment No. 1 (Iac/Interactivecorp)
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Loan Request”), request (i) Indebtedness in respect of all or any portion of the establishment of one or more new Classes of Term Loans then outstanding under this Agreement (which for purposes of this Section 2.13 will be deemed to include any then outstanding Other Loans, Incremental Loans or Extended Loans), in the form of Other Loans or Other Term Commitments in each case pursuant to a Refinancing Amendment; provided that such new ClassCredit Agreement Refinancing Indebtedness (i) will rank pari passu in right of payment and of security with the other Loans and Commitments hereunder, “New Refinancing Term Commitments”) or (ii) increases to one will have such pricing, premiums and optional prepayment or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, redemption terms as selected may be agreed by the BorrowerBorrower and the Lenders thereof; (iii) will have a maturity date no earlier than, any one and will have a Weighted Average Life to Maturity equal to or more of greater than, the existing Class or Classes of Loans or Commitments being refinanced and (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(biv) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the will have terms and conditions in this Section 2.15that are substantially identical to, or (itaken as a whole) each Refinancing Term Lender of such Class shall make a Term Loan are no more favorable to the Borrower (a “lenders or holders providing such Credit Agreement Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect Indebtedness than those applicable to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lenderbeing refinanced; provided, further, that no Additional Lender the terms and conditions applicable to such Credit Agreement Refinancing Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof and applicable only during periods after the Latest Maturity Date that is an Affiliated Lender in effect on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or an Affiliated Debt Fund shall be permitted obtained. Any Other Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis (except for prepayments pursuant to make Section 2.03(b)(iii)(B))) in any voluntary or provide mandatory prepayments hereunder, as specified in the applicable Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) Amendment. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) and, to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s of legal opinions, board resolutions, officers’ certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, and/or reaffirmation agreements 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), (B) a First Lien Intercreditor . Each Credit Agreement or Junior Lien Intercreditor Agreement, Refinancing Indebtedness incurred under this Section 2.13 shall be in an aggregate principal amount that is not less than $100,000,000. The Administrative Agent shall promptly notify each Lender as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by effectiveness of each Refinancing Amendment. Each of the Administrative Agent (including Mortgage amendmentsparties hereto hereby agrees that, if applicable) in order to ensure that upon the effectiveness of any Refinancing Term Commitment is provided with the benefit of the applicable Loan DocumentsAmendment, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans this Agreement shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (deemed amended to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive but only to the Borrower extent) necessary to reflect the existence and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and amendments necessary to treat the Loans in respect thereof) shall be (taken and Commitments subject thereto as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Other Loans and/or Other Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faithCommitments); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.152.13. The Borrower will use the proceeds, if any, of the Refinancing Term Loans This Section 2.13 shall supersede any provisions in exchange for, Section 2.11 or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard 10.01 to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 2 contracts
Samples: Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Classloans, collectively with New Refinancing Term Commitments, the “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.03 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Loan Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and voluntary prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower and the Subsidiaries than, the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) covenants or to the extent such other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date and (2) pricingDate, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the elects to add such more restrictive terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments other Facilities, or are otherwise reasonably acceptable to the Administrative Agent);
(and any vi) with respect to Refinancing Term Loans made pursuant thereto)secured by Liens on the Collateral that rank junior in right of security to the Initial Term Loans, andsuch Liens will be subject to a Permitted Junior Intercreditor Agreement;
(xiivii) notwithstanding there shall be no borrower (other than the foregoing, Refinancing Term Commitments of Borrower) and no guarantors (other than the kind described in Section 2.15(a)(A)(iiGuarantors) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of such Refinancing Term Loans;
(viii) Refinancing Term Loans shall become Commitments under this Agreement not be secured by any asset of the Borrower and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans may participate on a pro rata basis, a less than pro rata basis or, solely with respect to Term Loans being refinanced that participate on a greater than pro rata basis as compared to any other Class of Term Loans, a greater than pro rata basis (but only to the same extent that the refinanced Term Loans participate on a greater than pro rata basis as compared to any other Class of Term Loans) than the Term Loans in any mandatory prepayments (other than as provided otherwise in the case of such prepayments pursuant to an amendment (a “Section 2.11(b)(2)) hereunder, as specified in the applicable Refinancing Amendment”.
(b) The Borrower may approach any Lender or any other person that would be a permitted Assignee pursuant to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing Section 9.04 to provide such Commitmentall or a portion of the Refinancing Term Loans; provided, if any, each Additional that any Lender agreeing offered or approached to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that: (i) before and after giving effect to the establishment of such Replacement Revolving Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.03 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Commitments and any concurrent reduction in the aggregate amount of any other Revolving Commitments, the aggregate amount of Revolving Commitments shall not exceed the aggregate amount of the Revolving Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Maturity Date for the Revolving Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and the Subsidiaries than, those, taken as a whole, applicable to the Revolving Commitments so replaced (except to the extent such other terms apply solely to any period after the latest Revolving Maturity Date in effect at the time of incurrence, or the Borrower elects to add such more restrictive terms for the benefit of the other Facilities, or are otherwise reasonably acceptable to the Administrative Agent); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; (vi) Replacement Revolving Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral; and (vii) if such Replacement Revolving Facility is secured by Liens on the Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement. In addition, notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may establish Replacement Revolving Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement Revolving Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted Assignee hereunder) so long as (i) before and after giving effect to the establishment of such Replacement Revolving Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.03 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Commitments, (ii) the remaining life to termination of such Replacement Revolving Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Commitments shall be no earlier than the Term Loan Maturity Date of the refinanced Term Loans, (iv) with respect to Replacement Revolving Loans secured by Liens on Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement, (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility and (vi) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Commitments, the Administrative Agent and the replacement issuing banks and replacement swingline lender, if any, under such Replacement Revolving Facility) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and the Subsidiaries than, those, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date, or the Borrower elects to add such more restrictive terms for the benefit of the other Facilities, or are otherwise reasonably acceptable to the Administrative Agent). Solely to the extent that an Issuing Bank or the Swingline Lender is not a replacement issuing bank or a replacement swingline lender, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank or the Swingline Lender shall not be required to issue any letters of credit or swingline loan under such Replacement Revolving Facility and, to the extent it is necessary for such Issuing Bank or the Swingline Lender to withdraw as an Issuing Bank or the Swingline Lender, as the case may be, at the time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank or the Swingline Lender, as the case may be, in its sole discretion. The Borrower agrees to reimburse each Issuing Bank or the Swingline Lender, as the case may be, in full upon demand for any reasonable and documented out-of-pocket cost or expense attributable to such withdrawal.
(d) The Borrower may approach any Lender or any other person that would be a permitted Assignee of a Revolving Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Commitments; provided, that any Lender offered or approached to provide all or a portion of the Replacement Revolving Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Commitment. Any Replacement Revolving Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Commitments for all purposes of this Agreement; provided, that any Replacement Revolving Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Commitment, such Lender will be deemed to have an Other Revolving Commitment having the terms of such Replacement Revolving Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including this Section 2.23), (i) the incurrence of Refinancing Term Loans and Replacement Revolving Commitments will not reduce the Incremental Amount, (ii) no Refinancing Term Loan or Replacement Revolving Commitment is required to be in any minimum amount or any minimum increment, (iii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Commitment at any time or from time to time after the Closing Date issueother than those set forth in clauses (a) or (c) above, incur or otherwise obtain as applicable, and (it being understood that no Lender iv) all Refinancing Term Loans, Replacement Revolving Commitments and all obligations in respect thereof shall be required Loan Obligations under this Agreement and the other Loan Documents that rank equally and ratably in right of security with the Initial Term Loans and other Loan Obligations (other than Other Incremental Term Loans and Refinancing Term Loans that rank junior in right of security with any Term Loans, and except to provide the extent any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that Refinancing Term Loans are secured by the Collateral on a pari passu junior lien basis in accordance with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange forprovisions above, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”are unsecured).
Appears in 2 contracts
Samples: Credit Agreement (Enhabit, Inc.), Credit Agreement (Encompass Health Corp)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”)) or Refinancing Notes under a separate agreement, in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, refinance outstanding Term Loans in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent part and shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans be made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan procedures reasonably acceptable to the Borrower and the Administrative Agent, all Net Proceeds of which are used to refinance in whole or in part any Class of Term Loans. Each such notice shall specify the date (each, a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender or Refinancing Notes shall be issued, which shall be a date not earlier than five (but no existing Lender shall have any obligation 5) Business Days after the date on which such notice is delivered to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before and immediately after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans or Refinancing Notes shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discountsaggregate principal amount of the Refinancing Term Loans or Refinancing Notes shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, fees, optional prepayment costs and redemptions terms and, subject to clauses expenses (iiincluding original issue discount) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will or Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Refinancing Lenders providing Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the refinanced Term Loans (except to the extent such covenants and other terms apply solely to any period after the then applicable Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Refinancing Term Commitments Loans or Refinancing Notes may contain any financial maintenance covenants, so long as any such covenant shall not be more restrictive to the Borrower than (or in addition to) those applicable to the applicable Refinanced Debt Term Loans or Revolving Credit Commitment then outstanding (except unless such covenants are also added for the benefit of the Lenders, which shall not require consent of the Lenders holding the Term Loans or Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement effective on such Refinancing Effective Date); provided, further, that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five (15) covenants Business Days prior to the incurrence of such Refinancing Term Loans or other provisions applicable only to periods after Refinancing Notes, together with a reasonably detailed description of the Latest Maturity Date material terms and (2) pricingconditions of such Refinancing Term Loans or Refinancing Notes or drafts of the documentation relating thereto, fees, rate floors, premiums, optional prepayment or redemption terms) unless stating that the Borrower has determined in good faith that such terms and conditions reflect market satisfy the requirements of this clause (v), shall be conclusive evidence that such terms and conditions for satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five (5) Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees);
(vi) there shall be no borrower and no guarantors other than the Loan Parties in respect of such Refinancing Term Loans and Refinancing Notes;
(vii) Refinancing Term Loans and Refinancing Notes shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral; and
(viii) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments hereunder, as specified in the applicable Refinancing Amendment.
(b) The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to Section 9.04 to provide all or a portion of the Refinancing Term Loans; provided, that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated an additional Class of Term Loans for all purposes of this Agreement; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Credit Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Credit Commitments at under this Agreement. Each such notice shall specify the time date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that (i) immediately before and immediately after giving effect to the establishment of incurrence such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied, (ii) after giving effect to the establishment of any Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including upfront fees) and accrued interest associated therewith; (iii) no Replacement Revolving Credit Commitments shall have a final maturity date (or issuance thereof require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Credit Commitments being replaced; (in each caseiv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to fees, interest rates and other pricing terms) and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Credit Commitments and taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date in effect at the time of incurrence or are otherwise reasonably acceptable to the Administrative Agent); provided, provided that the terms of any New Term Commitments shall not include such Replacement Revolving Facilities may contain any financial maintenance covenants, so long as any such covenant shall not be tighter than (or in addition to) those applicable to the other Revolving Credit Commitment then outstanding (unless such financial maintenance covenant shall covenants are also apply added for the benefit of the Term Lenders holding the other or Revolving Credit Commitments (and any then outstanding, which shall not require consent of the Lenders holding Term Loans made pursuant theretoor Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement upon the applicable Replacement Revolving Facility Effective Date), and
; (xiiv) notwithstanding there shall be no borrower and no guarantors other than the foregoing, Refinancing Term Loan Parties in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Credit Commitments and extensions of credit thereunder shall not be secured by any asset of the kind described in Section 2.15(a)(A)(ii) (Borrower and its Subsidiaries other than the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they applyCollateral.
(fd) The Borrower may approach any Lender or any other Person that would be a permitted assignee of a Revolving Credit Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in respect its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Credit Commitments for all purposes of this Agreement; provided that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Credit Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable) shall become Commitments under execute and deliver to the Administrative Agent an amendment to this Agreement pursuant to an amendment (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Agreement and, as appropriate, and the other Loan Documents, executed by (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the Borrower, each existing terms of such Refinancing Term Loan and (B) if a Lender agreeing to provide such is providing a Replacement Revolving Credit Commitment, if anysuch Lender will be deemed to have an Other Revolving Credit Commitment having the terms of such Replacement Revolving Credit Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.20), each Additional Lender agreeing (i) no Refinancing Term Loan or Replacement Revolving Credit Commitment is required to provide such Commitmentbe in any minimum amount or any minimum increment, if any(ii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Credit Commitment at any time or from time to time other than those set forth in clauses (a) or (c) above, as applicable, and (iii) all Refinancing Term Loans, Replacement Revolving Credit Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the Administrative Agentother Loan Documents that rank equally and ratably in right of security with the other Secured Obligations. The Each Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the BorrowerAdministrative Agent, to effect the provisions of this Section 2.152.20. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Notwithstanding anything to the control of remedies) (such notescontrary, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness this Section 2.20 shall supersede any provisions in Section 2.15 or Section 9.02 to the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 2 contracts
Samples: Credit Agreement (Integrated Device Technology Inc), Credit Agreement (Integrated Device Technology Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), any Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and applicable Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lenderby the Administrative Agent in its sole discretion); provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and provided that:
(i) (as applicable) shall be met, assuming that before and after giving effect to the making or provision borrowing of such Refinancing Term Loans is an assignment on the Refinancing Effective Date each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans;
(iii) the Weighted Average Life to Maturity of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject no shorter than the then-remaining Weighted Average Life to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each Maturity of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of refinanced Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and;
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the aggregate principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and Loans shall not exceed the Loans in respect outstanding principal amount of the foregoingrefinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(v)) and optional prepayment or mandatory prepayment or redemption terms, of any Class which shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Parent in good faith) be substantially similar to, or no more restrictive to the Parent and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the with respect to Refinancing Term Loans may provide for secured by Liens on the ability Collateral that rank junior in right of security to participate on a pro rata basisthe Term B Loans, greater than such Liens will be subject to the Collateral Trust Agreement or less than pro rata basis in any voluntary repayments other Intercreditor Agreements, if any, as are reasonably necessary or prepayments of principal of Term Loans hereunder advisable (and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in reasonably acceptable to the case of a prepayment under Section 2.05(b)(iii)(B)Administrative Agent) in any mandatory repayments or prepayments of principal of Term Loans hereunder,to give effect to such security interest;
(vii) [reserved]there shall be no borrower (other than a Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans;
(viii) [reserved],Refinancing Term Loans shall not be secured by any asset of Parent and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.11(b)(2)) hereunder, as specified in the applicable Refinancing Amendment.
(b) The Parent or the applicable Borrower may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the applicable Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the applicable Borrower may at by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any time or from time to time Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the applicable Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the Closing date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that: (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date issueplus amounts used to pay fees, incur premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the applicable Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit under such Replacement Revolving Facility, which shall be as agreed between the applicable Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall (as determined by the Parent in good faith) be substantially similar to, or no more restrictive to the Parent and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Facility Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence or are otherwise obtain reasonably acceptable to the Administrative Agent); (v) there shall be no borrower (other than a Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of Parent and its Subsidiaries other than the Collateral, and (vii) if such Replacement Revolving Facility is secured by Liens on the Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to the Collateral Trust Agreement or any other Intercreditor Agreements, if any, as are reasonably necessary or advisable (and reasonably acceptable to the Administrative Agent) to give effect to such Liens. In addition, the applicable Borrower may establish Replacement Revolving Facility Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Facility Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement Revolving Facility Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted Assignee hereunder) so long as (i) before and after giving effect to the establishment such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 4.02 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Facility Commitments, (ii) the remaining life to termination of such Replacement Revolving Facility Commitments shall be no Lender shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Facility Commitments shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans, (iv) with respect to Replacement Revolving Loans secured by Liens on Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to the Collateral Trust Agreement or any other Intercreditor Agreements, if any, as are reasonably necessary or advisable (and reasonably acceptable to the Administrative Agent) to give effect to such Liens, (v) there shall be no borrower (other than a Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the applicable Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit under such Replacement Revolving Facility, which shall be as agreed between the applicable Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall (as determined by the Parent in good faith) be substantially similar to, or no more restrictive to the Parent and its Subsidiaries than, those, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent). Solely to the extent that an Issuing Bank is not a replacement issuing bank, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank shall not be required to provide issue any letters of credit under such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Replacement Revolving Facility and, to the control extent it is necessary for such Issuing Bank to withdraw as an Issuing Bank, as the case may be, at the time of remedies) (the establishment of such notesReplacement Revolving Facility, “Permitted Pari Passu Secured Refinancing Debt”)such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank, (B) secured Indebtedness in as the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loanscase may be, in its sole discretion. The applicable Xxxxxxxx agrees to reimburse each caseIssuing Bank, that are secured on a pari passu or subordinated basis with as the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”)case may be, in each casefull upon demand, in exchange for, for any reasonable and documented out-of-pocket cost or expense attributable to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)withdrawal.
Appears in 2 contracts
Samples: Credit Agreement (Jazz Pharmaceuticals PLC), Credit Agreement (Jazz Pharmaceuticals PLC)
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Loan Request”), request (i) Indebtedness in respect of all or any portion of the establishment of one or more new Classes of Term Loans then outstanding under this Agreement (which for purposes of this Section 3.3 will be deemed to include any then outstanding Other Loans or Extended Loans), in the form of Other Loans or Other Term Commitments in each case pursuant to a Refinancing Amendment; provided that such new ClassCredit Agreement Refinancing Indebtedness (i) will rank pari passu in right of payment and of security with the other Loans and Commitments hereunder, “New Refinancing Term Commitments”) or (ii) increases to one will have such pricing, premiums and optional prepayment or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, redemption terms as selected may be agreed by the BorrowerBorrower and the Lenders thereof; (iii) will have a later maturity date than, any one and will have a Weighted Average Life to Maturity equal to or more of greater than, the existing Class or Classes of Loans or Commitments being refinanced and (with respect to a particular Refinancing Term Commitment or Refinancing Term Loaniv) except as set forth in clause (ii) above, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the will have terms and conditions in this Section 2.15that are substantially identical to, or (itaken as a whole) each Refinancing Term Lender of such Class shall make a Term Loan are no more favorable to the Borrower (a “lenders or holders providing such Credit Agreement Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect Indebtedness than those applicable to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lenderbeing refinanced; provided, further, that no Additional Lender the terms and conditions applicable to such Credit Agreement Refinancing Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof and applicable only during periods after the Latest Maturity Date that is an Affiliated Lender in effect on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or an Affiliated Debt Fund shall be permitted to make obtained. Any Other Loans may participate on a pro rata basis or provide on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) Amendment. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(iSection 8.1(c) after giving effect on and as of the date thereof, provided that, to such Refinancing Term Commitmentsthe extent that any representations and warranties referred to in Section 8.1(c) specifically refer to an earlier date, the conditions of Sections 4.02(a) and (b) they shall be satisfied (it being understood that true and correct in all references to “the date material respects as of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) earlier date, and, to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s of legal opinions, board resolutions, officers’ certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, and/or reaffirmation agreements consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change under Section 8.1 or otherwise in law, change in fact or change to counsel’s form of opinion and substance reasonably satisfactory to the Administrative Agent), (B) a First Lien Intercreditor . Each Credit Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).Refinancing
Appears in 2 contracts
Samples: Credit Agreement (ALST Casino Holdco, LLC), Credit Agreement (ALST Casino Holdco, LLC)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.07(b), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not less than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the Borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Maturity Date maturity date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent (not refinanced Term Loans plus amounts used to be unreasonably withheld),pay fees, expenses, commissions, underwriting discounts and premiums and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms, optional prepayment or mandatory prepayment or redemption terms shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) to the extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (2other than the Subsidiary Guarantors) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for in respect of such Refinancing Term Commitments at Loans;
(vii) Refinancing Term Loans shall not be secured by any asset of the time Borrower and its subsidiaries other than the Collateral; and
(viii) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the case of incurrence or issuance thereof (in each casesuch prepayments pursuant to Section 2.07(b)) hereunder, as determined by specified in the applicable Refinancing Amendment.
(b) The Borrower in good faith)may approach any Lender or any other person that would be a permitted assignee pursuant to Section 9.05 to provide all or a portion of the Refinancing Term Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) The Borrower may and each Lender providing the applicable Refinancing Term Loans shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans. For purposes of this Agreement and the other Loan Documents, if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have a Term Loan having the terms of such Refinancing Term Loan. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.18), (i) no Refinancing Term Loan is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of any Refinancing Term Loan at any time or from time to time after the Closing Date issue, incur or otherwise obtain other than those set forth in clause (it being understood that no Lender a) above and (iii) all Refinancing Term Loans and all obligations in respect thereof shall be required Obligations under this Agreement and the other Loan Documents that rank equally and ratably in right of security with the refinanced Term Loans and all Obligations in respect thereof.
(d) Each party hereto hereby agrees that, upon the Refinancing Effective Date of any Refinancing Term Loans, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Refinancing Term Loans evidenced thereby as provided for in Section 9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.18 (including, without limitation, to provide for the establishment of Refinancing Term Loans) and any such Indebtedness) (A) secured Indebtedness under a separate agreement collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing between the form of one or more series of senior secured notes that are secured on a pari passu basis with Administrative Agent and the Obligations (but without regard Borrower and furnished to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)parties hereto.
Appears in 2 contracts
Samples: Credit Agreement (RR Donnelley & Sons Co), Credit Agreement (RR Donnelley & Sons Co)
Refinancing Amendments. (a) The Borrower mayNotwithstanding anything to the contrary in this Agreement, at any time or from time including Section 2.18(c) (which provisions shall not be applicable to time after the Closing Datethis Section 2.23), BGI may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and on which BGI proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and the Lenders thereunder; provided that a currency expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than Canadian Dollars provisions relating to original issue discount, upfront fees, interest rates and U.S. Dollars any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the consent of the Administrative Agent (not to provisions set forth in Section 2.21(b)(v)) and optional prepayment or mandatory prepayment or redemption terms, which shall be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower as agreed between BGI and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by BGI in good faith) be substantially similar to, or no more restrictive to BGI and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such other terms apply solely to any period after the Latest Maturity Date, BGI elects to add such more restrictive terms for the benefit of the other Facilities, or are otherwise reasonably acceptable to the Administrative Agent);
(vi) with respect to Refinancing Term Loans secured by Liens on the Collateral that rank junior in right of security to the Initial Term Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement;
(vii) there shall be no borrower (other than BGI) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans;
(viii) Refinancing Term Loans shall not be secured by any asset of BGI and the Guarantors other than the Collateral; and
(ix) Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or a less than pro rata basis in any voluntary repayments or prepayments of principal of or, solely with respect to Term Loans hereunder and being refinanced that participate on a greater than pro rata basis or less as compared to any other Class of Term Loans, a greater than a pro rata basis (but not only to the same extent that the refinanced Term Loans participate on a greater than a pro rata basis except as compared to any other Class of Term Loans) than the Term Loans in any mandatory prepayments (other than as provided otherwise in the case of a prepayment under such prepayments pursuant to Section 2.05(b)(iii)(B2.11(b)(2)) hereunder, as specified in any mandatory repayments or prepayments of principal of Term Loans hereunder,the applicable Refinancing Amendment.
(viib) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have BGI may approach any Lender or any other person that would be a greater principal amount than the principal amount permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to BGI.
(c) Notwithstanding anything to the Borrower may at any time or from time to time after the Closing Date issuecontrary in this Agreement, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtednessincluding Section 2.18(c) (A) secured Indebtedness under a separate agreement in which provisions shall not be applicable to this Section 2.23), the form of Borrowers may by written notice to the Administrative Agent establish one or more series of senior secured notes that are secured on a pari passu basis with additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the Obligations (but without regard to the control of remedies) (such notesrevolving loans thereunder, “Permitted Pari Passu Secured Refinancing DebtReplacement Revolving Loans”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, which replace in whole or in partpart any Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, any existing Class a “Replacement Revolving Facility Effective Date”) on which the Borrowers propose that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or Classes of Loans (such Loansshorter period agreed to by the Administrative Agent in its reasonable discretion); provided, “Refinanced Loans”).that:
Appears in 2 contracts
Samples: Amendment No. 2 (Barnes Group Inc), Credit Agreement (Barnes Group Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (iwhich may be in the form of an amendment to this Agreement pursuant to this Section 2.16) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement in minimum amounts of $10,000,000 (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or the net proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on it being understood that, with the principal amount consent of each Borrowing) so that each the Borrower and subject to allocation by the Borrower, any existing Lender under holding Term Loans of such Class will participate proportionately in each then outstanding Borrowing may elect to convert all or any portion of such Term Loans under into the applicable Refinancing Term Loans on a “cashless roll” basis). Each such Class in accordance with its Pro Rata Share.
notice shall specify the date (eeach, a “Refinancing Effective Date”) The terms and provisions of on which the Borrower proposes that the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as made, which shall be a date not earlier than three (3) Business Days after the date on which such notice is provided to the Administrative Agent (or such shorter period agreed between to the Borrower and the lenders providing such Refinancing Term CommitmentsAdministrative Agent); provided, provided that:
(i) such the final maturity date of the Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and Loans shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (no earlier than the maturity date applicable to the extent secured by all or a portion Class of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,Term Loans being refinanced;
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity of the Class of Term Loans being refinanced (except to the extent of nominal amortization for periods where amortization has been eliminated or reduced as then in effect for a result of prepayment of the applicable Refinanced Debt Class of Term Loans being refinanced);
(prior iii) the aggregate principal amount of the Refinancing Term Loans shall not exceed the outstanding principal amount of the Term Loans being refinanced plus amounts used to any extension thereto),pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions all other terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any such Refinancing Term Loans (other than provisions relating to premiums, original issue discount, upfront fees, interest rates and any other pricing terms, which shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or not more favorable to the Refinancing Lenders providing lenders of such Refinancing Term Commitments Loans than those the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1i) to the extent such covenants or and other provisions applicable only terms apply to periods any period after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) latest maturity date applicable to any Class of Term Loans unless such more favorable terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply are added for the benefit of the Term Commitments Loans, which shall not require the consent of the Lenders and (ii) a financial maintenance covenant may be added for the benefit of such Refinancing Term Loans, so long as such financial maintenance covenant is also added to any other Class of Term Loans that remain outstanding);
(v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans, unless such borrower or guarantor is an entity organized or formed in the United States and becomes a co-Borrower or Guarantor (as applicable) under the Loan Documents and is otherwise reasonably acceptable to the Administrative Agent;
(vi) Refinancing Term Loans shall not be secured by any asset other than the Collateral; and
(vii) Refinancing Term Loans shall be secured by Collateral on a pari passu basis with the outstanding Term Loans and may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments or voluntary prepayments hereunder, as specified in the applicable Refinancing Amendment.
(b) The Borrower may approach any Lender or any other person that would be a permitted assignee pursuant to Section 11.07 to provide all or a portion of the Refinancing Term Loans; provided, that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made pursuant thereto)on any Refinancing Effective Date shall be designated an additional Class of Term Loans for all purposes of this Agreement; provided, and
(xii) notwithstanding the foregoingfurther, that any Refinancing Term Commitments Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Term Loans made pursuant thereto) shall form part of to the same Class as, Borrower and have identical terms toin connection with any such increase, the applicable Borrower may amend, without the consent of any Lender, the terms of such previously established Class of Term Loans to which they applyinclude premiums and/or to increase the pricing thereof.
(fc) Commitments in respect of The Borrower and each Lender providing the applicable Refinancing Term Loans shall become Commitments under execute and deliver to the Administrative Agent an amendment to this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, and such other documentation as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative AgentAgent shall reasonably request in writing. The Any Refinancing Amendment may, without shall not require the consent of any Lender other Lenders, than Lenders providing such Refinancing Term Loans and may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion judgment of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.152.16. The Borrower will use the proceeds, if any, of the Each Lender providing such Refinancing Term Loans in exchange for, or that is not already a Lender hereunder on the Refinancing Effective Date shall become a Lender under this Agreement pursuant to extend, renew, replace, repurchase, retire or refinance, and the Refinancing Amendment. Each Refinancing Amendment shall permanently terminate applicable commitments underbe binding on the Lenders, the applicable Refinanced DebtLoan Parties and the other parties hereto. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.16), in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment there shall be designated a separate Class no condition to any incurrence of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may Loan at any time or from time to time after the Closing Date issueother than those set forth in clause (a) above, incur or otherwise obtain as applicable.
(it being understood d) The Borrower may replace any Lender that no Lender shall be required does not consent to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement convert their Term Loans in the form of one or more series of senior secured notes that are secured on a pari passu basis to Refinancing Term Loans in accordance with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Section 11.16.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Ardent Health Partners, LLC), Term Loan Credit Agreement (Ardent Health Partners, LLC)
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Borrowers may obtain, from any then existing Lender or any new Lender, Credit Agreement Refinancing Loan Request”), request (i) Indebtedness in respect of all or any portion of the establishment of one or more new Classes of Term Loans and Commitments then outstanding under this Agreement (which for purposes of this Section 2.18 will be deemed to include any such new Class, “New then outstanding Refinancing Term Loans and Refinancing Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in the form of Refinancing Loans and Refinancing Commitments in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect case pursuant to a particular Refinancing Term Commitment or Amendment; provided that such Credit Agreement Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, Indebtedness (i) each Refinancing Term Lender will rank pari passu in right of such Class payment and of security with the other Loans hereunder (and shall make a Term Loan to the Borrower (a be included as “Refinancing Term LoanObligations”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless otherwise meet the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such the definition thereof. Any Refinancing Amendment:
Loans may participate on a pro rata basis or on a less than pro rata basis (ibut not on a greater than pro rata basis) after giving effect to such Refinancing Term Commitmentsin any voluntary prepayments hereunder, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language as specified in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Amendment. Each incurrence of Credit Agreement Refinancing Term Commitment Indebtedness incurred under this Section 2.18 shall be in an aggregate principal amount that is not less than C$5,000,000 $25,000,000. Both before and after giving effect to any such Refinancing Amendment (i) no Event of Default shall then exist and (ii) the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in an increment all material respects (and in all respects if any such representation or warranty is already qualified by materiality or Material Adverse Effect) on and as of C$1,000,000 (provided that the effective date of such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) Refinancing Amendment, except to the extent reasonably requested that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by the Administrative Agentmateriality or Material Adverse Effect) as of such earlier date, and except that for purposes of this subclause (ii), the receipt by representations and warranties contained in Sections 5.05(a) and (b) shall be deemed to refer to the Borrowers and the most recent consolidated financial statements of the Borrowers and their Subsidiaries pursuant to Section 6.01(a). The Borrowers shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the applicable effective date of such Refinancing Amendment (Ain sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party, certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Refinancing Amendment, and certifying that the conditions precedent set out in this subsection (Ia) customary officer’s certificates and board resolutions and have been satisfied.
(IIb) customary opinions of counsel The Administrative Agent shall promptly notify each Lender as to the Loan Partieseffectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that, in each caseupon the effectiveness of any Refinancing Amendment, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory this Agreement shall be deemed amended to the Administrative Agent), extent (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments but only to the Collateral Documents extent) necessary to reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Refinancing Loans and/or Refinancing Commitments) and such other technical amendments as may be reasonably requested by necessary or appropriate in the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent reasonable opinion of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred Borrowers in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agenttherewith. The Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerBorrowers, to effect the provisions of this Section 2.152.18. The Borrower will use This Section 2.18 shall supersede any provisions in Section 2.13 or Section 11.01 to the proceedscontrary. In addition, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans except for all purposes of this Agreement.
Section 3.04 and/or with respect to any breakage costs arising from the untimely payment of interest rate contracts, Refinancing Amendments shall not constitute voluntary or mandatory payments or prepayments for any purposes hereunder. For the avoidance of doubt, after giving effect to the incurrence of any such Credit Agreement Refinancing Indebtedness and any borrowing with respect thereto, (i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after Total Outstandings shall not exceed the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Line Cap.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (BJ Services, Inc.)
Refinancing Amendments. (a) The Borrower mayNotwithstanding anything to the contrary in this Agreement, at any time or from time including Section 2.19(c) (which provisions shall not be applicable to time after this Section 2.23), the Closing Date, Borrowers may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes additional tranches of Term Loans term loans denominated at the option of the Borrowers, in Dollars or Euro, under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.12(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrowers propose that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.01 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and the Lenders thereunder; provided that a currency expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than Canadian Dollars provisions relating to original issue discount, upfront fees, interest rates and U.S. Dollars any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the consent of provisions set forth in Section 2.22(b)(v)) and optional prepayment or mandatory prepayment or redemption terms, which shall be as agreed between the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower Borrowers and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Dutch Borrower in good faith) be substantially similar to, or not materially less favorable to the Parent and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the with respect to Refinancing Term Loans may provide for secured by Liens on the ability Collateral that rank junior in right of security to participate on the Initial Term Loans, such Liens will be subject to a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,Permitted Junior Intercreditor Agreement;
(vii) [reserved]there shall be no direct or contingent obligor in respect of such Refinancing Term Loans except (x) the borrowers shall be comprised solely of the Dutch Borrower (with the Co-Borrower a joint and several co-borrower as provided in this Agreement) and (y) the guarantors shall constitute the Guarantors hereunder;
(viii) [reserved],Refinancing Term Loans shall not be secured by any asset of the Parent and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.12(b)(2) hereunder, as specified in the applicable Refinancing Amendment.
(b) The Borrowers may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower may at any time or from time Borrowers.
(c) Notwithstanding anything to time after the Closing Date issuecontrary in this Agreement, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtednessincluding Section 2.19(c) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard which provisions shall not be applicable to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”this Section 2.23), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).Borrowers may by written
Appears in 1 contract
Refinancing Amendments. (a) The Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).
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Samples: Term Loan Credit Agreement (GFL Environmental Holdings Inc.)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, Representative may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(i)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower Representative proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments Loans on the Refinancing Effective Date each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans;
(iii) the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no shorter than the then-remaining Weighted Average Life to Maturity of the refinanced Term Loans;
(iv) the aggregate principal amount of the Refinancing Term Loans shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(v) the covenants and events of default applicable to such Refinancing Term Loans taken as a whole shall (xas determined by Parent in good faith) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to Parent and its Subsidiaries than, the Borrower terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Guarantors Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding);
(vi) [reserved];
(vii) there shall be no borrower (other than the Borrowers) and no guarantors (other than the Loan Documents,Parties) in respect of such Refinancing Term Loans;
(iiviii) Refinancing Term Loans shall not mature earlier be secured by any asset of Parent or any of its subsidiaries other than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms Collateral; and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.11(b)(i)(2)) hereunder, as specified in the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).
Appears in 1 contract
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(d) (which provisions shall not be applicable to this Section 2.22), the Borrower may, at any time or from time to time after the Closing Date, may by revocable written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all the proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than ten (10) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is ; provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date, each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Maturity Date maturity date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Term Loans plus amounts used to pay fees, prepayment premiums or penalties, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, prepayment penalties and premiums, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as reasonably determined by the Administrative Agent) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the latest maturity date applicable to any Loans or Commitments hereunder or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the Refinancing Term Loans may provide for the ability Borrower shall be in compliance immediately prior to participate and immediately after giving effect (including giving effect on a pro rata forma basis) to such refinancing with the financial covenants set forth in Section 6.10 (without giving effect to any Acquisition Holiday) as of the last day of the fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, greater than if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or less than pro rata basis (b), the most recent financial statements referred to in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B3.04)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,, as applicable;
(vii) [reserved]there shall be no borrower (other than the Borrower) and no guarantors (other than the Loan Parties) in respect of such Refinancing Term Loans, as determined on the Refinancing Effective Date;
(viii) [reserved],any Unrestricted Subsidiary shall be an “unrestricted subsidiary” under the terms of any Refinancing Term Loans, as determined on the Refinancing Effective Date;
(ix) Refinancing Term Loans shall not have a greater principal amount be secured by any asset of the Borrower or any of its Restricted Subsidiaries other than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,Collateral; and
(x) [reserved],Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments (other than as provided otherwise in the case of such prepayments pursuant to Section 2.11(b)) hereunder, as specified in the applicable Refinancing Amendment.
(xib) except as set forth above, The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to Section 9.04 to provide all or a portion of the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith)Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement; provided further that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to a Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(d) (which provisions shall not be applicable to this Section 2.22), the Borrower may by revocable written notice to the Administrative Agent establish one or more additional credit facilities hereunder (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Commitments shall become effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its sole discretion); provided that:
(i) immediately before giving effect to the establishment of such Replacement Revolving Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) after giving effect to the establishment of any Replacement Revolving Commitments and any concurrent reduction in the aggregate amount of any other Revolving Commitments, the aggregate amount of Revolving Commitments shall not exceed the aggregate amount of the Revolving Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, prepayment premiums and penalties, costs and expenses (including original issue discount) and accrued interest associated therewith;
(iii) no Replacement Revolving Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the maturity date for the Revolving Commitments being replaced;
(iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, prepayment penalties and premiums, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Commitments and (y) the amount of any letter of credit sublimit or swingline sublimit under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Commitments, the Administrative Agent, the replacement issuing bank and the replacement swingline lender, if any, under such Replacement Revolving Commitments) taken as a whole shall (as reasonably determined by the Administrative Agent) be substantially similar to, or no more restrictive to the Borrower and the Restricted Subsidiaries than, those, taken as a whole, applicable to the Revolving Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the latest maturity date applicable to any Loans or Commitments hereunder or are otherwise reasonably acceptable to the Administrative Agent);
(v) the Borrower shall be in compliance immediately prior to and immediately after giving effect (including giving effect on a pro forma basis) to such refinancing with the financial covenants set forth in Section 6.10 (without giving effect to any Acquisition Holiday) as of the last day of the fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04), as applicable;
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility, as determined on the Replacement Revolving Facility Effective Date;
(vii) any Unrestricted Subsidiary shall be an “unrestricted subsidiary” under the terms of any Replacement Revolving Facility, as determined on the Replacement Revolving Facility Effective Date;
(viii) Replacement Revolving Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its Restricted Subsidiaries other than the Collateral; and
(ix) Replacement Revolving Commitments and Replacement Revolving Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory commitment reductions or prepayments (other than as provided otherwise in the case of such prepayments pursuant to Section 2.11(b)) hereunder, as specified in the applicable Refinancing Amendment. In lieu of incurring any Refinancing Term Loansaddition, the Borrower may establish Replacement Revolving Commitments to refinance and/or replace all or any portion of a Term Loan hereunder, so long as the aggregate amount of such Replacement Revolving Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, prepayment premiums and penalties, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement Revolving Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other Person that would be a permitted assignee under Section 9.04) so long as (i) immediately before giving effect to the establishment such Replacement Revolving Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 4.02 shall be satisfied, (ii) the remaining life to termination of such Replacement Revolving Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Commitments shall be no earlier than the maturity date of the refinanced Term Loans, (iv) the Borrower shall be in compliance immediately prior to and immediately after giving effect (including giving effect on a pro forma basis) to such replacement with the financial covenants set forth in Section 6.10 (without giving effect to any Acquisition Holiday) as of the last day of the fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04), as applicable, (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Loan Parties) in respect of such Replacement Revolving Facility, (vi) any Unrestricted Subsidiary shall be an “unrestricted subsidiary” under the terms of any Replacement Revolving Facility, (vii) no Replacement Revolving Facility shall be secured by any asset of the Borrower and its Restricted Subsidiaries other than the Collateral and (viii) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, prepayment penalties and premiums, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Commitments and (y) the amount of any letter of credit sublimit or swingline sublimit under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Commitments, the Administrative Agent, the replacement issuing bank and the replacement swingline lender, if any, under such Replacement Revolving Commitments) taken as a whole shall (as reasonably determined by the Administrative Agent) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries than, those, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the latest maturity date applicable to any Loans or Commitments hereunder or are otherwise reasonably acceptable to the Administrative Agent).
(d) The Borrower may approach any Lender or any other Person that would be a permitted assignee of a Revolving Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Commitment. Any Replacement Revolving Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Commitments for all purposes of this Agreement; provided that any Replacement Revolving Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other necessary documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Commitment, such Lender will be deemed to have an Other Revolving Commitment having the terms of such Replacement Revolving Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.22), (i) no Refinancing Term Loan or Replacement Revolving Commitment is required to be in any minimum amount or any minimum increment, (iii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Commitment at any time or from time to time after other than those set forth in clauses (a) or (c) above, as applicable, and (iv) unless otherwise agreed to by the Closing Date issueapplicable Lender with respect to such Loans or Commitments, incur or otherwise obtain (it being understood that no Lender all Refinancing Term Loans, Replacement Revolving Commitments and all obligations in respect thereof shall be required to provide any such Indebtedness) (A) secured Indebtedness Obligations under a separate agreement this Agreement and the other Loan Documents that rank equally and ratably in the form right of one or more series of senior secured notes that are secured on a pari passu basis security with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Obligations.
Appears in 1 contract
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”)) or Refinancing Notes pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower, in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each Loans. Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of or Refinancing Notes shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before and immediately after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans or Refinancing Notes shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discountsaggregate principal amount of the Refinancing Term Loans or Refinancing Notes shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, fees, optional prepayment costs and redemptions terms and, subject to clauses expenses (iiincluding original issue discount) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will or Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Refinancing Lenders providing Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Initial Term B Loans (except to the extent such covenants and other terms apply solely to any period after the then applicable Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Refinancing Term Commitments Loans or Refinancing Notes may contain any financial maintenance covenants, so long as any such covenant shall not be more restrictive to the Borrower than (or in addition to) those applicable to the applicable Refinanced Debt Term Loans or Revolving Credit Commitment then outstanding (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall covenants are also apply added for the benefit of the Term Commitments (and any Lenders, which shall not require consent of the Lenders holding the Term Loans made pursuant theretoor Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement effective on such Refinancing Effective Date), ;
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans and Refinancing Notes;
(vii) Refinancing Term Loans and Refinancing Notes shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral; and
(xiiviii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described Loans and Refinancing Notes may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class asany mandatory prepayments hereunder, and have identical terms to, as specified in the applicable Class of Term Loans to which they applyRefinancing Amendment.
(fb) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing Section 9.04 to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange foror Refinancing Notes; provided, that any Lender offered or approached to extend, renew, replace, repurchase, retire provide all or refinance, and shall permanently terminate applicable commitments under, a portion of the applicable Refinanced DebtRefinancing Term Loans or Refinancing Notes may elect or decline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan or Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional Facilities (each, a “Replacement Revolving Facility”) providing for revolving commitments (“Replacement Revolving Credit Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Credit Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that (i) immediately before and immediately after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied, (ii) after giving effect to the establishment of any Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Credit Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Credit Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to fees, interest rates and other pricing terms) and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Credit Commitments and taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date in effect at the time of incurrence or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Replacement Revolving Facilities may contain any financial maintenance covenants, so long as any such covenant shall not be tighter than (or in addition to) those applicable to the Term Loans or Revolving Credit Commitment then outstanding (unless such covenants are also added for the benefit of the Lenders holding the Term Loans or Revolving Credit Commitments then outstanding, which shall not require consent of the Lenders holding the Term Loans or Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement upon the applicable Replacement Revolving Facility Effective Date); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantor) in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Credit Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral.
(d) The Borrower may approach any Lender or any other Person that would be a permitted assignee of a Revolving Credit Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Credit Commitments for all purposes of this Agreement; provided that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Credit Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Credit Commitment, such Lender will be deemed to have an Other Revolving Credit Commitment having the terms of such Replacement Revolving Credit Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.20), (i) no Refinancing Term Loan or Replacement Revolving Credit Commitment is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Credit Commitment at any time or from time to time after the Closing Date issueother than those set forth in clauses (a) or (c) above, incur or otherwise obtain as applicable, and (it being understood that no Lender iii) all Refinancing Term Loans, Replacement Revolving Credit Commitments and all obligations in respect thereof shall be required to provide any such Indebtedness) (A) secured Indebtedness Obligations under a separate agreement this Agreement and the other Loan Documents that rank equally and ratably in the form right of one or more series of senior secured notes that are secured on a pari passu basis security with the Obligations (but without regard other Secured Obligations. Notwithstanding anything to the control of remedies) (such notescontrary, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness this Section 2.20 shall supersede any provisions in Section 2.15 or Section 9.02 to the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.08(c), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the Borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Maturity Date maturity date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms (optional prepayment or mandatory prepayment or redemption terms shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Subsidiary Guarantors) in respect of such Refinancing Term Loans;
(vii) Refinancing Term Loans shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral;
(viii) Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or on a less than a pro rata basis (but not on a greater than a pro rata basis except basis) in any mandatory prepayments (other than as provided otherwise in the case of a prepayment under such prepayments pursuant to Section 2.05(b)(iii)(B2.08(c)) hereunder, as specified in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],the applicable Refinancing Amendment; and
(ix) Refinancing Term Loans shall not at any time have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as any financial maintenance covenants of a different type than the financial covenants set forth abovein Section 6.10, or any financial maintenance covenants that are more restrictive than the material terms and conditions of any such Refinancing Term Commitments financial covenants set forth in Section 6.10 or (and the Loans in respect thereofy) shall be (negative covenants and/or default provisions that, taken as a whole) no , are materially more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments restrictive than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, Revolving Facility as determined in good faith by the Borrower unless, in good faith); providedeach case of clauses (x) and (y) such terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply incorporated into this Agreement for the benefit of the Term Commitments all then existing Lenders (and without further amendment requirements) for so long as any such Refinancing Term Loans made pursuant thereto), are outstanding or (II) become applicable only after the Revolving Facility shall have matured or been terminated and
(xiix) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceedsNet Proceeds, if any, of such Refinancing Term Loans shall be applied in accordance with Section 2.08(c).
(b) The Borrower may approach any Lender or any other person that would be a permitted assignee pursuant to Section 9.05 to provide all or a portion of the Refinancing Term Loans; provided, that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may at any time or from time by written notice to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of Administrative Agent establish one or more series of senior secured notes that are secured on a pari passu basis with additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the Obligations (but without regard to the control of remedies) (such notesrevolving loans thereunder, “Permitted Pari Passu Secured Refinancing DebtReplacement Revolving Loans”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, which replace in whole or in partpart any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, any existing Class a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or Classes of Loans (such Loansshorter period agreed to by the Administrative Agent in its reasonable discretion); provided, “Refinanced Loans”).that:
Appears in 1 contract
Samples: Credit Agreement (Match Group, Inc.)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.08(c), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the Borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Maturity Date maturity date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms (optional prepayment or mandatory prepayment or redemption terms shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) to the extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (2other than the Guarantors) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for in respect of such Refinancing Term Commitments at Loans;
(vii) Refinancing Term Loans shall not be secured by any asset of the time Borrower and its subsidiaries other than the Collateral; and
(viii) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the case of incurrence or issuance thereof (in each casesuch prepayments pursuant to Section 2.08(c)) hereunder, as determined by specified in the applicable Refinancing Amendment.
(b) The Borrower in good faith)may approach any Lender or any other person that would be a permitted assignee pursuant to Section 9.05 to provide all or a portion of the Refinancing Term Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may at any time or from time by written notice to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of Administrative Agent establish one or more series of senior secured notes that are secured on a pari passu basis with additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the Obligations (but without regard to the control of remedies) (such notesrevolving loans thereunder, “Permitted Pari Passu Secured Refinancing DebtReplacement Revolving Loans”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, which replace in whole or in partpart any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, any existing Class a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or Classes of Loans (such Loansshorter period agreed to by the Administrative Agent in its reasonable discretion); provided, “Refinanced Loans”).that:
Appears in 1 contract
Samples: Credit Agreement (Match Group, Inc.)
Refinancing Amendments. (a) The Borrower mayNotwithstanding anything to the contrary in this Agreement, at any time or from time including Section 2.19(c) (which provisions shall not be applicable to time after this Section 2.23), the Closing Date, Borrowers may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes additional tranches of Term Loans term loans denominated at the option of the Borrowers, in Dollars or Euro, under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.12(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrowers propose that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.01 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and the Lenders thereunder; provided that a currency expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than Canadian Dollars provisions relating to original issue discount, upfront fees, interest rates and U.S. Dollars any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the consent of provisions set forth in Section 2.22(b)(v)) and optional prepayment or mandatory prepayment or redemption terms, which shall be as agreed between the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower Borrowers and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Dutch Borrower in good faith) be substantially similar to, or not materially less favorable to the Parent and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the with respect to Refinancing Term Loans may provide for secured by Liens on the ability Collateral that rank junior in right of security to participate on the Initial Term Loans, such Liens will be subject to a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,Permitted Junior Intercreditor Agreement;
(vii) [reserved]there shall be no direct or contingent obligor in respect of such Refinancing Term Loans except (x) the borrowers shall be comprised solely of the Dutch Borrower (with the Co-Borrower a joint and several co-borrower as provided in this Agreement) and (y) the guarantors shall constitute the Guarantors hereunder;
(viii) [reserved],Refinancing Term Loans shall not be secured by any asset of the Parent and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.12(b)(2) hereunder, as specified in the applicable Refinancing Amendment.
(b) The Borrowers may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower may at any time or from time Borrowers.
(c) Notwithstanding anything to time after the Closing Date issuecontrary in this Agreement, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtednessincluding Section 2.19(c) (A) secured Indebtedness under a separate agreement in which provisions shall not be applicable to this Section 2.23), the form of Borrowers may by written notice to the Administrative Agent establish one or more series of senior secured notes that are secured on a pari passu basis with additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the Obligations (but without regard to the control of remedies) (such notesrevolving loans thereunder, “Permitted Pari Passu Secured Refinancing DebtReplacement Revolving Loans”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, which replace in whole or in partpart any Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrowers propose that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its sole discretion); provided that: (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.01 shall be satisfied; (ii) after giving effect to the establishment of any existing Class Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date; (iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or Classes require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date in effect at the time of incurrence for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrowers and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrowers, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and swingline lender, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall (as determined by the Dutch Borrower in good faith) be substantially similar to, or not materially more favorable to the Lenders providing such Replacement Revolving Facility Commitments than, those, taken as a whole, applicable to the Initial Revolving Loans (except to the extent such Loanscovenants and other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence or are otherwise reasonably acceptable to the Administrative Agent); (v) there shall be no direct or contingent obligor in respect of such Replacement Revolving Facility except (x) the borrowers shall be comprised solely of the Dutch Borrower (with the Co-Borrower a joint and several co-borrower as provided in this Agreement) and (y) the guarantors shall constitute the Guarantors hereunder; and (vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of the Parent and its subsidiaries other than the Collateral, “Refinanced Loans”)and any such Replacement Revolving Facility Commitments shall be secured on the same basis as the Revolving Facility Commitments being replaced. Solely to the extent that an L/C Issuer is not a replacement issuing bank, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such L/C Issuer shall not be required to issue any letters of credit under such Replacement Revolving Facility and, to the extent it is necessary for such L/C Issuer to withdraw as an L/C Issuer, as the case may be, at the time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory to such L/C Issuer, as the case may be, in its sole discretion. The Borrowers agree to reimburse each L/C Issuer, as the case may be, in full upon demand, for any reasonable and documented out-of-pocket cost or expense attributable to such withdrawal.
Appears in 1 contract
Refinancing Amendments. (a) The Borrower may, at any time or from time to time after the Closing Agreement Date, by notice to the Administrative Agent (a “Refinancing Term Loan Request”), request (i) the establishment of one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the then-existing Class or Classes of Term Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or CommitmentsTerm Loans, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the LendersLenders holding such proposed Refinanced Debt.
(b) Each Refinancing Term Loan Request from the Borrower pursuant to this Section 2.4 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the proposed Refinanced Debt with respect thereto. Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may made on a Refinancing Closing Date shall be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. Refinancing Term Loans may be made by any existing Lender (but no existing Lender will have an obligation to make any Refinancing Term Commitment, nor will the Borrower have any obligation to approach any existing Lender to provide any Refinancing Term Commitment) or by any Additional Lender (each such Additional Lender providing such Refinancing Term Commitment or Refinancing Term Loan, a “Refinancing Term Lender”); provided that the Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans to the extent such consent, if any, would be required under Section 13.2 for an assignment of Term Loans, to such Additional Lender.
(c) On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.152.4, (i) each Refinancing Term Lender of such Class shall make a Term Loan Loan, severally, but not jointly or jointly and severally with the other Refinancing Term Lenders, to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(cd) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount The terms, provisions and proposed terms documentation of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion Commitments of any Class shall be as agreed between the Borrower, the applicable Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making Lenders providing such Refinancing Term Loans if such consent would be required under or Refinancing Term Commitments and the Agent (in the case of the Agent, only with respect to terms and provisions not otherwise specified in this Section 10.07(b) for an assignment 2.4 that adversely affect the rights or obligations of the Agent), and except as otherwise set forth herein, to the extent not substantially identical to any Class of Term Loans to such Lender or Additional Lender; providedexisting on the Refinancing Closing Date, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and consistent with clauses (i) through (vi) below:
(i) at the Borrower’s option, may rank pari passu or junior in right of payment with the Obligations under the then existing Term Loans, may be pari passu or junior in right of security with the Obligations under the then existing Term Loans (and, if junior in right of security, subject to an Appropriate Intercreditor Agreement) or may be unsecured;
(ii) as applicableof the Refinancing Closing Date, shall not mature earlier than the Maturity Date of the Refinanced Debt;
(iii) shall be met, assuming that have a Weighted Average Life to Maturity not shorter than the making or provision remaining Weighted Average Life to Maturity of the Refinanced Debt on the date of incurrence of such Refinancing Term Loans is an assignment (except by virtue of amortization or prepayment of the Refinanced Debt prior to the time of such incurrence);
(iv) shall have an applicable margin and, subject to clauses (d)(ii) and (d)(iii) above, amortization determined by the Borrower and the applicable Refinancing Term Lenders;
(v) shall not be subject to any guarantee by any person other than an Obligor and shall not include any borrower other than the Borrower; and
(vi) may, in the case of any Refinancing Term Loans that are pari passu in right of payment and right of security with then existing Term Loans, provide for the ability to participate on a pro rata basis, or on a less than pro rata basis (but not on a greater than pro rata basis), in any voluntary prepayments of such Person (each such existing Lender or Additional Lender providing such Commitment or LoanTerm Loans hereunder, a “as specified in the applicable Refinancing Term Lender” and, collectively, “Refinancing Lenders”)Amendment.
(de) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such the Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$$5,000,000 and shall be in an increment of C$$1,000,000 (provided that such amount may be less than C$$5,000,000 and not in an increment of C$$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in Debt);
(ii) after giving effect to such Refinancing Term Commitments, the form conditions of Term Loans),Sections 10.1(h) and 10.1(i) shall be satisfied; and
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent principal amount (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendmentsaccreted value, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the such Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on not exceed the principal amount (or accreted value, if applicable) of each Borrowing) so that each Lender under such Class will participate proportionately the Refinanced Debt (plus the amount of unpaid accrued or capitalized interest and premiums thereon (including make-whole premiums, prepayment premiums, tender premiums and amounts required to be paid in each then outstanding Borrowing of Term Loans under such Class in accordance connection with its Pro Rata Sharedefeasance and satisfaction and discharge), underwriting discounts, original issue discount, defeasance costs, fees (including upfront fees), commissions and expenses).
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(iif) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement established pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Refinancing Term Lender agreeing to provide providing such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, Refinancing Term Loans and the Administrative Agent. The Refinancing Amendment may, without the consent of any other LendersObligor, agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.152.4, including, if applicable, amendments as deemed necessary by the Agent in its reasonable judgment to effect (i) any lien subordination and associated rights of the applicable Lenders to the extent any Refinancing Term Loans are to rank junior in right of security and (ii) that any Previously Absent Financial Maintenance Covenant does not benefit any Term Loan hereunder. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, substantially concurrently, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).
Appears in 1 contract
Samples: Amendment and Restatement Agreement (United Rentals North America Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments Loans on the Refinancing Effective Date each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans;
(iii) the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no shorter than the then-remaining Weighted Average Life to Maturity of the refinanced Term Loans;
(iv) the aggregate principal amount of the Refinancing Term Loans incurred pursuant to this Section 2.23 shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(v) the covenants and events of default applicable to such Refinancing Term Loans taken as a whole shall (xas determined by Parent in good faith) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to Parent and its Subsidiaries than, the Borrower terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Guarantors Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding);
(vi) [reserved];
(vii) there shall be no borrower (other than the Borrower) and no guarantors (other than the Loan Documents,Parties or entities that become Loan Parties) in respect of such Refinancing Term Loans;
(iiviii) Refinancing Term Loans shall not mature earlier be secured by any asset of Parent or any of its subsidiaries other than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms Collateral; and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.11(b)(2)) hereunder, as specified in the applicable Refinancing Amendment.
(b) The Borrower may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) The Borrower may and each Lender providing the applicable Refinancing Term Loans shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans. For purposes of this Agreement and the other Loan Documents, if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.23), (i) the aggregate amount of Refinancing Term Loans will not be included in the calculation of clause (I)(a) or (II)(a) of the definition of “Incremental Amount”, (ii) no Refinancing Term Loan is required to be in any minimum amount or any minimum increment, (iii) there shall be no condition to any incurrence of any Refinancing Term Loan at any time or from time to time after the Closing Date issue, incur or otherwise obtain other than those set forth in clause (it being understood that no Lender a) above and (iv) all Refinancing Term Loans and all obligations in respect thereof shall be required to provide any such Indebtedness) (A) secured Indebtedness Loan Obligations under a separate agreement this Agreement and the other Loan Documents that rank equally and ratably in the form right of one or more series of senior secured notes that are secured on a pari passu basis security with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or Initial Term Loans and other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Loan Obligations.
Appears in 1 contract
Samples: Delayed Draw Bridge Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Refinancing Amendments. (a) The Borrower mayNotwithstanding anything to the contrary in this Agreement, at any time or from time including Section 2.16(c) (which provisions shall not be applicable to time after this Section 2.21), the Closing Date, Borrowers may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.09(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrowers propose that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.01 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which in each case shall be determined by as agreed between the Borrower Borrowers and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Lux Borrower in good faith) be substantially similar to, or not materially less favorable to the Parent and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the with respect to Refinancing Term Loans may provide for secured by Liens on the ability Collateral that rank junior in right of security to participate on the Initial Term Loans, such Liens will be subject to a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,Permitted Junior Intercreditor Agreement;
(vii) [reserved]there shall be no direct or contingent obligor in respect of such Refinancing Term Loans except (x) the borrowers shall be comprised solely of any or all of the Lux Borrower and the Co-Borrower (on a joint and several basis as provided in this Agreement) and (y) the guarantors shall constitute the Guarantors hereunder;
(viii) [reserved],Refinancing Term Loans shall not be secured by any asset of the Parent and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.09(b)(2)) hereunder, as specified in the applicable Refinancing Amendment.
(b) The Borrowers may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower may Borrowers.
(c) [Reserved.]
(d) [Reserved.]
(e) The Borrowers and each Lender providing the applicable Refinancing Term Loans shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans. For purposes of this Agreement and the other Loan Documents, if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) [reserved,] (ii) no Refinancing Term Loan is required to be in any minimum amount or any minimum increment, (iii) there shall be no condition to any incurrence of any Refinancing Term Loan at any time or from time to time after the Closing Date issueother than those set forth in clauses (a) or (c) above, incur or otherwise obtain as applicable, and (it being understood that no Lender iv) all Refinancing Term Loans and all obligations in respect thereof shall be required Obligations under this Agreement and the other Loan Documents that rank equally and ratably in right of security with the Initial Term Loans and other Loan Obligations (other than Other Incremental Term Loans that rank junior in right of security with the Initial Term Loans, and except to provide the extent any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that Refinancing Term Loans are secured by the Collateral on a pari passu junior lien basis in accordance with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”provisions above).
Appears in 1 contract
Samples: Credit Agreement (Mallinckrodt PLC)
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in the form of Refinancing Term Loans or Refinancing Term Loan Request”), request (i) the establishment Commitments in respect of one all or more new Classes any portion of any Class of Term Loans then outstanding under this Agreement (which for purpose of this clause (a) will be deemed to include any such new Class, “New then outstanding Refinancing Term Commitments”Loans) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Amendment; provided that (x) such Credit Agreement Refinancing Term LoanIndebtedness (A) will rank pari passu in right of payment and of security with the other Loans and Commitments hereunder, (B) will have such existing Loans or Commitmentspricing (including interest rates, “Refinanced Debt”)rate floors, whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(bfees, original issue discounts and premiums) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedand, subject to Section 4.02 and 4.09, optional and mandatory prepayment terms as may be agreed by the satisfaction Borrower and the Lenders thereof, (C) will have a maturity date that is not prior to the maturity date of, and will have a Weighted Average Life to Maturity that is not shorter than, the Class of the Term Loans being refinanced and (D) will have terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan that are otherwise agreed to between the Borrower (a “and the Lenders providing such Credit Agreement Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class Indebtedness and (iiy) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayedwithheld) to such Lender’s or Additional Lender’s making providing such Credit Agreement Refinancing Term Loans Indebtedness if such consent would be required under Section 10.07(b) 11.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) . The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction satisfaction, on the date thereof (each, a “Refinancing Facility Amendment Closing Date”) ), of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such . Each Class of Credit Agreement Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Indebtedness incurred under this Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment 12.03 shall be in an aggregate principal amount that is (x) not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt $10,000,000 and (y) may not be an integral multiple of $1,000,000 in excess thereof (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that such lesser amount of Indebtedness being refinanced as is materially more restrictive then outstanding). The Administrative Agent shall promptly notify each Lender as to the Borrower effectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Guarantors than Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loan Documents,
(ii) Loans and Commitments subject thereto as Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) and/or Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension theretoLoan Commitments),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B)12.03.
(gb) [reserved].
(h) Any New Refinancing Term Commitment This Section 12.03 shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring supersede any Refinancing Term Loans, the Borrower may at any time provisions in Section 4.09 or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Section 11.01 to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and the Lenders thereunder; provided that a currency expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than Canadian Dollars provisions relating to original issue discount, upfront fees, interest rates and U.S. Dollars any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the consent of the Administrative Agent (not to provisions set forth in Section 2.21(b)(v)) and optional prepayment or mandatory prepayment or redemption terms, which shall be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) covenants or to the extent such other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date and (2) pricingDate, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the elects to add such more restrictive terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments other Facilities, or are otherwise reasonably acceptable to the Administrative Agent);
(and any vi) with respect to Refinancing Term Loans made pursuant thereto)secured by Liens on the Collateral that rank junior in right of security to the Initial Term Loans, andsuch Liens will be subject to a Permitted Junior Intercreditor Agreement;
(xiivii) notwithstanding there shall be no borrower (other than the foregoing, Refinancing Term Commitments of Borrower) and no guarantors (other than the kind described in Section 2.15(a)(A)(iiGuarantors) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of such Refinancing Term Loans;
(viii) Refinancing Term Loans shall become Commitments under this Agreement not be secured by any asset of the Borrower and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the case of such prepayments pursuant to an amendment (a “Section 2.11(b)(2)) hereunder, as specified in the applicable Refinancing Amendment”.
(b) The Borrower may approach any Lender or any other person that would be a permitted Assignee pursuant to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing Section 9.04 to provide such Commitmentall or a portion of the Refinancing Term Loans; provided, if any, each Additional that any Lender agreeing offered or approached to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may at by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any time or from time to time Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the Closing date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that: (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date issueplus amounts used to pay fees, incur premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing banks, if any, under such Replacement Revolving Facility) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Facility Commitments so replaced (except to the extent such other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence, or the Borrower elects to add such more restrictive terms for the benefit of the other Facilities, or are otherwise obtain reasonably acceptable to the Administrative Agent); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; (vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral; and (vii) if such Replacement Revolving Facility is secured by Liens on the Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement. In addition, the Borrower may establish Replacement Revolving Facility Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Facility Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement Revolving Facility Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted Assignee hereunder) so long as (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Facility Commitments, (ii) the remaining life to termination of such Replacement Revolving Facility Commitments shall be no Lender shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Facility Commitments shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans, (iv) with respect to Replacement Revolving Loans secured by Liens on Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement, (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility and (vi) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing banks, if any, under such Replacement Revolving Facility) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date, or the Borrower elects to add such more restrictive terms for the benefit of the other Facilities, or are otherwise reasonably acceptable to the Administrative Agent). Solely to the extent that an Issuing Bank is not a replacement issuing bank under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank shall not be required to provide issue any letters of credit under such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Replacement Revolving Facility and, to the control extent it is necessary for such Issuing Bank to withdraw as an Issuing Bank at the time of remedies) (the establishment of such notesReplacement Revolving Facility, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank in the form of one its sole discretion. The Borrower agrees to reimburse each Issuing Bank in full upon demand for any reasonable and documented out-of-pocket cost or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (expense attributable to such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)withdrawal.
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Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”)) or Refinancing Notes pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower, in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each Loans. Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of or Refinancing Notes shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lenderby the Administrative Agent in its sole discretion); provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and that:
(i) (as applicable) shall be met, assuming that immediately before and immediately after giving effect to the making or provision borrowing of such Refinancing Term Loans is an assignment on the Refinancing Effective Date each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) the final maturity date of the Refinancing Term Loans or Refinancing Notes shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans;
(iii) the Weighted Average Life to Maturity of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject no shorter than the then-remaining Weighted Average Life to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each Maturity of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of refinanced Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and;
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the aggregate principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and Loans or Refinancing Notes shall not exceed the Loans in respect outstanding principal amount of the foregoing)refinanced Term Loans plus amounts used to pay fees, of premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans or Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any Class other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).Term
Appears in 1 contract
Samples: Credit Agreement (Cavium, Inc.)
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Restatement Effective Date, by notice to the Administrative Agent (a “Borrower may obtain from any Lender or any Additional Refinancing Loan Request”), request (i) Lender Credit Agreement Refinancing Indebtedness in respect of all or any portion of the establishment of one or more new Classes of Term Loans then outstanding under this Agreement (which for this purpose will be deemed to include any such new Class, “New then outstanding Refinancing Term Commitments”Loans), in the form of Refinancing Term Loans, in each case pursuant to a Refinancing Amendment; provided that such Credit Agreement Refinancing Indebtedness (i) or will rank pari passu in right of payment and of security with the other Term Loans and Term Commitments hereunder, (ii) increases have such pricing and optional prepayment terms as may be agreed by the Borrower and the Lenders thereof, (iii) except as may be agreed to one by the Lenders and Additional Refinancing Lenders providing such Credit Agreement Refinancing Indebtedness in the respective Refinancing Amendment (but solely as it relates to such Lenders waiving their pro rata share of any applicable prepayment or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”repayment), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for shall be prepaid and repaid on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis) with all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction voluntary prepayments and mandatory prepayments of the terms and conditions in this Section 2.15other Classes of Term Loans, (i) each Refinancing Term Lender of such Class shall make a Term Loan to it being understood that the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect amortization schedule applicable to the Refinancing Term Commitment of such Class Loans shall be determined by the Borrower and the Lenders providing the Refinancing Term Loans of such Class made pursuant thereto.
and (civ) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender except as provided in clauses (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(hii) and (iiii) (above or as applicable) provided below, shall be methave covenants, assuming that events of default, guarantees, collateral and other terms which are substantially identical to, or less favorable to the making or provision Lenders of such Refinancing Term Loans is an assignment of such Refinancing Term Loans than, the Refinanced Debt; provided further that the terms and conditions applicable to such Person (each Credit Agreement Refinancing Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof and applicable only during periods after the Latest Maturity Date that is in effect on the date such existing Lender Credit Agreement Refinancing Indebtedness is issued, incurred or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) obtained. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a), (b) and (bc) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) and, to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (Ai) (I) customary officer’s certificates and legal opinions, board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, officers’ certificates consistent with those delivered on the Closing Date (other than changes to such legal opinions opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, Agent and (Cii) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any the Refinancing Term Commitment is Loans are provided with the benefit of the applicable Loan Documents, and
(iv) the . Each tranche of Credit Agreement Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans Indebtedness incurred under this Section 2.15 shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the in an aggregate principal amount that is not less than $50,000,000. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions Refinancing Amendment. Each of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation parties hereto hereby agrees that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, and the other Loan Documents, executed by the Borrower, each existing Lender agreeing Documents may be amended pursuant to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The a Refinancing Amendment mayAmendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Term Loans and Term Commitments subject thereto as Refinancing Term Loans and/or Refinancing Term Commitments), (ii) provide certain class protection to the Lenders and Additional Refinancing Lenders providing such Credit Agreement Refinancing Indebtedness with respect to voluntary prepayments and mandatory prepayments, (iii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of the third paragraph of Section 10.01 (without the consent of the Required Lenders called for therein) and (iv) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinanceSection, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, Required Lenders hereby expressly authorize the Borrower may at any time or from time Administrative Agent to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide enter into any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Amendment.
Appears in 1 contract
Samples: Credit Agreement (Avaya Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”)) or Refinancing Notes under a separate agreement, in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, refinance outstanding Term Loans in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent part and shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans be made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan procedures reasonably acceptable to the Borrower and the Administrative Agent, all Net Proceeds of which are used to refinance in whole or in part any Class of Term Loans. Each such notice shall specify the date (each, a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender or Refinancing Notes shall be made or issued, which shall be a date not earlier than five (but no existing Lender shall have any obligation 5) Business Days after the date on which such notice is delivered to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before and immediately after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) other than with respect to Permitted Inside Maturity Debt, the final maturity date of the Refinancing Term Loans or Refinancing Notes shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a other than with respect to Permitted Inside Maturity Debt, the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discountsaggregate principal amount of the Refinancing Term Loans or Refinancing Notes shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, fees, optional prepayment costs and redemptions terms and, subject to clauses expenses (iiincluding original issue discount) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will or Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis shall be consistent in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under all material respects with the terms of the instrument or documents governing such Refinanced Debt and corresponding refinanced Term Loans or, if not consistent in any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection material respect with the issuance terms of such Refinancing the corresponding refinanced Term Loans,
, at the option of the Borrower, either (x) [reserved],
(xi) except as set forth above, the material reflect market terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable at the time of incurrence or issuance (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing of such Refinancing Term Commitments than those Loans or Refinancing Notes, as applicable or (y) not be materially more restrictive to the applicable Refinanced Debt Borrower and its Subsidiaries (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that when taken as a whole, than the terms of any New applicable to the refinanced Term Commitments shall not include any financial maintenance covenant unless Loans (except to the extent such financial maintenance covenant shall covenants and other terms (1) are also apply added for the benefit of the Lenders holding Term Loans outstanding on the Refinancing Effective Date, which shall not require consent of the Lenders holding the Term Loans or Revolving Credit Commitments outstanding on the Refinancing Effective Date and which the Administrative Agent shall add to this Agreement effective on such Refinancing Effective Date, (2) apply solely to any period after the then applicable Latest Maturity Date of the Term Loans outstanding on the Refinancing Effective Date, or (3) are otherwise reasonably acceptable to the Administrative Agent); provided that any such Refinancing Term Loans or Refinancing Notes may contain any financial maintenance covenants, so long as any such covenant shall not be more restrictive to the Borrower than (or in addition to) those applicable to the Term Loans or Revolving Credit Commitment outstanding on the Refinancing Effective Date (unless such covenants are also added for the benefit of the Lenders holding the Term Loans or Revolving Credit Commitments outstanding on the Refinancing Effective Date, which shall not require consent of the Lenders holding the Term Loans or Revolving Credit Commitments outstanding on the Refinancing Effective Date and which the Administrative Agent shall add to this Agreement effective on such Refinancing Effective Date);
(vi) there shall be no borrower and no guarantors other than the Loan Parties in respect of such Refinancing Term Loans and Refinancing Notes;
(vii) Refinancing Term Loans and Refinancing Notes shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral; and
(viii) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments hereunder, as specified in the applicable Refinancing Amendment.
(b) The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to Section 9.04 to provide all or a portion of the Refinancing Term Loans; provided, that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, on any Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) Effective Date shall form part of the same Class as, and have identical terms to, the applicable be designated an additional Class of Term Loans for all purposes of this Agreement; provided, further, that any Refinancing Term Loans may, to which they applythe extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(fc) Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Credit Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), or Refinancing Notes under a separate agreement, in each case, which replace in whole or in part any Class of Revolving Credit Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Credit Commitments or Refinancing Notes shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that (i) immediately before and immediately after giving effect to the establishment of such Replacement Revolving Credit Commitments or Refinancing Notes on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied, (ii) after giving effect to the establishment of any Replacement Revolving Credit Commitments or issuance of Refinancing Notes and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including upfront fees) and accrued interest associated therewith; (iii) other than Permitted Inside Maturity Debt, no Replacement Revolving Credit Commitments or Refinancing Notes shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Credit Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility or Refinancing Notes, as applicable (other than provisions relating to fees, interest rates and other pricing terms, and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Credit Commitments or Refinancing Notes, as applicable), shall be consistent in all material respects with the terms of the corresponding Class of Revolving Credit Commitments so replaced or, if not consistent in any material respect with the terms of the corresponding Class of Revolving Credit Commitments so replaced, at the option of the Borrower, either (x) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith) of such Replacement Revolving Credit Commitments or Refinancing Notes, as applicable or (y) not be materially more restrictive to the Borrower and its Subsidiaries (as determined by the Borrower in good faith), when taken as a whole, than the terms applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other terms (1) are also added for the benefit of the Lenders holding the other Revolving Credit Commitments then outstanding, which shall not require consent of the Lenders holding Term Loans or Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement upon the applicable Replacement Revolving Facility Effective Date, (2) apply solely to any period after the Latest Maturity Date in effect at the time of incurrence or (3) are otherwise reasonably acceptable to the Administrative Agent); provided that any such Replacement Revolving Facilities or Refinancing Notes may contain any financial maintenance covenants, so long as any such covenant shall not be more restrictive to the Borrower than (or in addition to) those applicable to the other Revolving Credit Commitments outstanding on the Refinancing Effective Date (unless such covenants are also added for the benefit of the Lenders holding the other Revolving Credit Commitments outstanding on the Refinancing Effective Date, which shall not require consent of the Lenders holding Term Loans or Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement upon the applicable Replacement Revolving Facility Effective Date); (v) there shall be no borrower and no guarantors other than the Loan Parties in respect of such Replacement Revolving Facility or Refinancing Notes; and (vi) Replacement Revolving Credit Commitments and extensions of credit thereunder or Refinancing Notes shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral.
(d) The Borrower may approach any Lender or any other Person that would be a permitted assignee of a Revolving Credit Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Credit Commitments for all purposes of this Agreement; provided that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Credit Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable) shall become Commitments under execute and deliver to the Administrative Agent an amendment to this Agreement pursuant to an amendment (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Agreement and, as appropriate, and the other Loan Documents, executed by (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the Borrower, each existing terms of such Refinancing Term Loan and (B) if a Lender agreeing to provide such is providing a Replacement Revolving Credit Commitment, if anysuch Lender will be deemed to have an Other Revolving Credit Commitment having the terms of such Replacement Revolving Credit Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), each Additional Lender agreeing (i) no Refinancing Term Loan or Replacement Revolving Credit Commitment is required to provide such Commitmentbe in any minimum amount or any minimum increment, if any(ii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Credit Commitment at any time or from time to time other than those set forth in clauses (a) or (c) above, as applicable, and (iii) all Refinancing Term Loans, Replacement Revolving Credit Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the Administrative Agentother Loan Documents that rank equally and ratably in right of security with the other Secured Obligations. The Each Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the BorrowerAdministrative Agent, to effect the provisions of this Section 2.152.21. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Notwithstanding anything to the control of remedies) (such notescontrary, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness this Section 2.21 shall supersede any provisions in Section 2.16 or Section 9.02 to the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Samples: Credit Agreement (Maxlinear Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.08(c), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the Borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Maturity Date maturi- ty date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent out- standing principal amount of the Administrative Agent refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms (optional prepayment or mandatory prepayment or redemption terms shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans;
(vii) Refinancing Term Loans shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral;
(viii) Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or on a less than a pro rata basis (but not on a greater than a pro rata basis except basis) in any mandatory prepayments (other than as provided other- wise in the case of a prepayment under such prepayments pursuant to Section 2.05(b)(iii)(B2.08(c)) hereunder, as specified in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],the applicable Refinancing Amendment; and
(ix) Refinancing Term Loans shall not at any time have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as any financial maintenance cove- nants of a different type than the financial covenants set forth abovein Section 6.10, or any financial maintenance covenants that are more restrictive than the material terms and conditions of any such Refinancing Term Commitments financial covenants set forth in Section 6.10 or (and the Loans in respect thereofy) shall be (negative covenants and/or default provisions that, taken as a whole) no , are materially more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments restrictive than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after Revolving Facility as determined in good faith by the Latest Maturity Date Borrower unless, in each case of clauses and (2y) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements) for so long as any such Refinancing Term Commitments at Loans are outstanding or (II) become applicable only after the time Revolving Facility shall have matured or been terminated.
(b) The Borrower may approach any Lender or any other person that would be a permitted assignee pursuant to Section 9.05 to provide all or a portion of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith)Refinancing Term Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing of- fered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole dis- cretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may at any time or from time by written notice to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of Administrative Agent establish one or more series of senior secured notes that are secured on a pari passu basis with additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the Obligations (but without regard to the control of remedies) (such notesrevolving loans thereunder, “Permitted Pari Passu Secured Refinancing DebtReplacement Revolving Loans”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, which replace in whole or in partpart any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, any existing Class a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or Classes of Loans (such Loansshorter period agreed to by the Administrative Agent in its reasonable discretion); provided, “Refinanced Loans”).that:
Appears in 1 contract
Samples: Credit Agreement (Match Group, Inc.)
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing RestatementFourth Amendment Effective Date, by notice the Borrower may obtain from any Lender or any Additional Lender Credit Agreement Refinancing Indebtedness in respect of all or any portion of any Class(es) of the Loans then outstanding under this Agreement (which for this purpose will be deemed to the Administrative Agent (a “include any then outstanding Class(es) of Loans, Extended Term Loans, Refinancing Loan Request”Term Loans or Incremental Term Loans), request in the form of Refinancing Term Loans or Refinancing Term Commitments, in each case pursuant to a Refinancing Amendment; provided that, (i) the establishment of one or more new Classes of Term Loans under this Agreement (any such new Classterms, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more provisions and documentation of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New and Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Loan Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to be as agreed between the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing applicable Lender or Additional Lender providing such Commitment Refinancing Term Commitments, and except as otherwise set forth herein, to the extent not identical to (or Loan, constituting a part of) any Class of Term Loans existing on the closing date of such Credit Agreement Refinancing Indebtedness (i)the “Refinancing Term Lender” and, collectively, “Refinancing LendersFacility Closing Date”).
, shall either, at the option of the Borrower, (dx) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower) or (y) if not consistent with the terms of the corresponding Class of Term Loans not be materially more restrictive to the Borrower (as determined by the Borrower), when taken as a whole, than the terms of the applicable Class of Term Loans being refinanced or replaced (except (1) covenants or other provisions applicable only to periods after the Maturity Date of the 2020 Refinancing Term B Loans (as of the applicable Refinancing Facility Closing Date) of such Class being refinanced and (2) pricing (as to which any “most-favored nation” provision shall not apply), fees, rate floors, premiums, optional prepayment or redemption terms (which shall be determined by the Borrower)) unless the Lenders under the Term Loans existing on the Refinancing Facility Closing Date, receive the benefit of such more restrictive terms in such Credit Agreement Refinancing Indebtedness, (ii) will rank pari passu in right of payment and of security with the other Loans and Commitments hereunder, (ii) have such pricing and optional prepayment terms as may be agreed by the Borrower and the Lenders thereof, and (iii) except as otherwise provided in Sections 2.05(a)(i), 2.05(b)(iii) and 2.05(c)(i) or as may be agreed to by the Lenders and Additional Lenders providing such Credit Agreement Refinancing Indebtedness in the respective Refinancing Amendment, each Class of Refinancing Term Loans shall be prepaid and repaid (or offered to be repaid in the case of Section 2.05(c)) on a pro rata basis with all voluntary prepayments and mandatory prepayments (other than amortization payments) of the other Classes of Loans and (iv) otherwise be treated hereunder no more favorably, including with respect to covenants and events of default, than the Refinanced Debt; provided further that the terms and conditions applicable to such Credit Agreement Refinancing Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof and applicable only during periods after the Latest Maturity Date that is in effect on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) Amendment and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) and, to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (A) (Ii) customary officer’s certificates and legal opinions, board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, officers’ certificates consistent with those delivered on the Closing Restatement Effective Date (conformed as appropriate) 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, Agent and (Cii) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Collateral Agent (including Mortgage amendments, if applicable) in order to ensure that any the Credit Agreement Refinancing Term Commitment Indebtedness is provided with the benefit of the applicable Loan Documents, and
(iv) the . Each tranche of Credit Agreement Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans Indebtedness incurred under this Section 2.15 shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the in an aggregate principal amount that is not less than $50,000,000. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions Refinancing Amendment. Each of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation parties hereto hereby agrees that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, and the other Loan Documents, executed by the Borrower, each existing Lender agreeing Documents may be amended pursuant to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The a Refinancing Amendment mayAmendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Refinancing Term Loans and/or Refinancing Term Commitments), (ii) provide certain class protection to the Lenders and Additional Lenders providing such Credit Agreement Refinancing Indebtedness with respect to voluntary prepayments and mandatory prepayments, (iii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of the second paragraph of Section 10.01 and (iv) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinanceSection, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, Required Lenders hereby expressly authorize the Borrower may at any time or from time Administrative Agent to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide enter into any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Amendment.
Appears in 1 contract
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in the form of Refinancing Term Loans or Refinancing Term Loan Request”), request (i) the establishment Commitments in respect of one all or more new Classes any portion of any Class of Term Loans then outstanding under this Agreement (which for purpose of this clause (a) will be deemed to include any such new Class, “New then outstanding Refinancing Term Commitments”Loans) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Amendment; provided that (x) such Credit Agreement Refinancing Term LoanIndebtedness (A) will rank pari passu in right of payment and of security with the other Loans and Commitments hereunder, (B) will have such existing Loans or Commitmentspricing (including interest rates, “Refinanced Debt”)rate floors, whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(bfees, original issue discounts and premiums) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedand, subject to Section 4.02 and 4.09, optional and mandatory prepayment terms as may be agreed by the satisfaction Borrower and the Lenders thereof, (C) will have a maturity date that is not prior to the maturity date of, and will have a Weighted Average Life to Maturity that is not shorter than, the Class of the Term Loans being refinanced and (D) will have terms and conditions that are otherwise consistent with the applicable requirements set forth in this Section 2.15, (i) each the definition of “Credit Agreement Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class Indebtedness” and (iiy) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayedwithheld) to such Lender’s or Additional Lender’s making providing such Credit Agreement Refinancing Term Loans Indebtedness if such consent would be required under Section 10.07(b) 11.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, provided further that no Additional Lender the terms and conditions applicable to such Credit Agreement Refinancing Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof and applicable only during periods after the Latest Maturity Date that is an Affiliated Lender in effect on the date such Credit Agreement Refinancing Indebtedness is incurred or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) obtained. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction satisfaction, on the date thereof (each, a “Refinancing Facility Amendment Closing Date”) ), of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such . Each Class of Credit Agreement Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Indebtedness incurred under this Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment 12.03 shall be in an aggregate principal amount that is (x) not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt $10,000,000 and (y) may not be an integral multiple of $1,000,000 in excess thereof (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that such lesser amount of Indebtedness being refinanced as is materially more restrictive then outstanding). The Administrative Agent shall promptly notify each Lender as to the Borrower effectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Guarantors than Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loan Documents,
(ii) Loans and Commitments subject thereto as Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) and/or Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension theretoLoan Commitments),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B)12.03.
(gb) [reserved].
(h) Any New Refinancing Term Commitment This Section 12.03 shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring supersede any Refinancing Term Loans, the Borrower may at any time provisions in Section 4.09 or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Section 11.01 to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Samples: Credit Agreement (Roundy's, Inc.)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) at any time after the establishment of Closing Date establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Classloans, collectively with New "Refinancing Term Commitments, “Refinancing Term Commitments”Loans"), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in partpart any Class of Term Loans pursuant to Section 2.11(b)(2) or any Indebtedness of LVLT, as selected by QC, Embarq or any of their respective Subsidiaries that is included in "Consolidated Priority Debt" (and, in the Borrowercase of revolving Indebtedness, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”correspondingly reduce commitments), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (beach, a "Refinancing Effective Date") Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lenderby the Administrative Agent in its sole discretion); provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendmentthat:
(i) after giving effect to the borrowing of such Refinancing Term Commitments, Loans on the Refinancing Effective Date each of the conditions of Sections 4.02(a) and (b) set forth in Section 4.03 shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),satisfied;
(ii) each the final maturity date of the Refinancing Term Commitment Loans shall be no earlier than the earlier of (x) the final maturity date of the refinanced Indebtedness and (y) the 91st day following the Latest Maturity Date in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment effect at the time of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),incurrence thereof;
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the lesser of (x) the then-remaining Weighted Average Life to Maturity of the refinanced Indebtedness and (y) 91 days after the Weighted Average Life to Maturity as of the Class of Term Loans then in effect for outstanding with the applicable Refinanced Debt (prior greatest remaining Weighted Average Life to any extension thereto),Maturity;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Indebtedness plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable substantially similar to, or (as reasonably determined by the Borrower in good faith) no more restrictive, taken as a whole, to the Refinancing Lenders providing Borrower and its Subsidiaries than the terms applicable to the Term B Loans or, if applicable, the Term Loans being refinanced or, with respect to any such Refinancing Term Commitments than those applicable Loans with amortization in excess of 1.0% per year that are being primarily syndicated to regulated banks in the primary syndication thereof and that are used to Refinance in whole or in part any Indebtedness of LVLT, QC, Embarq or their respective Subsidiaries, the Term A Loans (except, in each case, to the applicable Refinanced Debt (except for (1) extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (2other than the Guarantors) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for in respect of such Refinancing Term Commitments at Loans;
(vii) Refinancing Term Loans shall not be secured by any asset of the time Borrower and its subsidiaries other than the Collateral; and
(viii) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the case of incurrence or issuance thereof (in each casesuch prepayments pursuant to Section 2.11(b)(2)) hereunder, as determined by specified in the applicable Refinancing Amendment.
(b) The Borrower in good faith)may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the Refinancing Term Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may by written notice to the Administrative Agent at any time after the Closing Date establish one or more additional Facilities (each, a "Replacement Revolving Facility") providing for revolving commitments ("Replacement Revolving Facility Commitments" and the revolving loans thereunder, "Replacement Revolving Loans"), which replace in whole or in part any Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a "Replacement Revolving Facility Effective Date") on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that: (i) after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.03 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including upfront fees) and accrued interest associated therewith; (iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility Commitments) shall be substantially similar to, or (as determined by the Borrower in good faith) no more restrictive, taken as a whole, to the Borrower and its Subsidiaries than, those applicable to the Revolving Facility Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence or are otherwise reasonably acceptable to the Administrative Agent); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral. In addition, the Borrower may establish Replacement Revolving Facility Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Facility Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including upfront fees) and accrued interest associated therewith (it being understood that such Replacement Revolving Facility Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted Assignee hereunder) so long as (i) after giving effect to the establishment such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 4.03 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Facility Commitments, (ii) the remaining life to termination of such Replacement Revolving Facility Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Facility Commitments shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans, (iv) such Replacement Revolving Loans shall be secured by Liens on Collateral that rank pari passu in right of security to the other Loans, (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility Commitments) shall be substantially similar to, or (as determined by the Borrower in good faith) no more restrictive, taken as a whole, to the Borrower and its Subsidiaries than those applicable to the then effective Revolving Facilities (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent). Solely to the extent that an Issuing Bank or Swingline Lender is not a replacement issuing bank or replacement swingline lender, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank or Swingline Lender shall not be required to issue any letters of credit or swingline loan under such Replacement Revolving Facility and, to the extent it is necessary for such Issuing Bank or Swingline Lender to withdraw as an Issuing Bank or Swingline Lender, as the case may be, at the time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank or Swingline Lender, as the case may be, in its sole discretion. The Borrower agrees to reimburse each Issuing Bank or Swingline Lender, as the case may be, in full upon demand, for any reasonable and documented out-of-pocket cost or expense attributable to such withdrawal.
(d) The Borrower may approach any Lender or any other person that would be a permitted Assignee of a Revolving Facility Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Facility Commitments (subject to receipt of any consents that would be required for an assignment of Revolving Facility Commitments to such person pursuant to Section 9.04); provided, that any Lender offered or approached to provide all or a portion of the Replacement Revolving Facility Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Facility Commitment. Any Replacement Revolving Facility Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Facility Commitments for all purposes of this Agreement; provided, that any Replacement Revolving Facility Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Facility Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Facility Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a "Refinancing Amendment") and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Facility Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Facility Commitment, such Lender will be deemed to have an Other Revolving Facility Commitment having the terms of such Replacement Revolving Facility Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.23), (i) no Refinancing Term Loan or Replacement Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (ii) this Agreement shall impose no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Facility Commitment at any time or from time to time after the Closing Date issueother than those set forth in clauses (a) or (c) above, incur or otherwise obtain as applicable, and (it being understood that no Lender iii) all Refinancing Term Loans, Replacement Revolving Facility Commitments and all obligations in respect thereof shall be required to provide any such Indebtedness) (A) secured Indebtedness Loan Obligations under a separate agreement this Agreement and the other Loan Documents that rank equally and ratably in the form right of one or more series of senior secured notes that are secured on a pari passu basis security with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Term A Loans, “Refinanced Term A-1 Loans”), Term B Loans and other Loan Obligations.
Appears in 1 contract
Samples: Incremental Assumption Agreement (Centurylink, Inc)
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice to each Co-Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in respect of all or any portion of the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of one or more new Classes of Term Loans made to such Co-Borrower then outstanding under this Agreement (which will be deemed to include any such new Classthen outstanding Other Term Loans), “New Refinancing in the form of Other Term Loans or Other Loan Term Commitments”, in each case pursuant to a Refinancing Amendment; provided that such Credit Agreement Refinancing Indebtedness (i) or will rank pari passu in right of payment and of security with the other Loans and Commitments hereunder, (ii) increases will have such pricing and optional prepayment terms as may be agreed by the Designated Company and the Lenders thereof, (iii) will have a maturity date that is not prior to one or more existing Classes of term loans under this Agreement the maturity date of, and will have a Weighted Average Life to Maturity that is not shorter than the Term Loans being refinanced, (any such increase iv) subject to an existing Classclause (ii) above, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange forwill have terms and conditions that are substantially identical to, or less favorable to extendthe investors providing such Credit Agreement Refinancing Indebtedness than, renewthe Refinanced Debt and (v) the proceeds of such Credit Agreement Refinancing Indebtedness shall be applied, replacesubstantially concurrently with the incurrence thereof, repurchase, retire or refinance, in whole or in part, as selected by to the Borrower, any one or more prepayment of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing outstanding Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of being so refinanced; provided further that the terms and conditions in this Section 2.15, (i) each applicable to such Credit Agreement Refinancing Term Lender of such Class shall make a Term Loan to Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class Designated Company and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from Lenders thereof and applicable only during periods after the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender Latest Maturity Date that is an Affiliated Lender in effect on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) obtained. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term CommitmentsSection 4.03 and, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s of legal opinions, board resolutions, officers’ certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, and/or reaffirmation agreements consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing under Section 4.02. Each Class of Term Loans Credit Agreement Refinancing Indebtedness incurred under this Section 2.24 shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the in an aggregate principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall is (x) rank pari passu or junior not less than $50,000,000 in right the case of payment and shall be unsecured or rank pari passu or junior in right of security with all Other Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt Loans and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive an integral multiple of $1,000,000 in excess thereof. The Administrative Agent shall promptly notify each Lender as to the Borrower and the Guarantors than the Loan Documents,
(ii) effectiveness of each Refinancing Term Loans shall not mature earlier than the Maturity Date Amendment. Each of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity parties hereto hereby agrees that, upon the effectiveness of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans Amendment, this Agreement shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt deemed amended to the extent permanently terminated at (but only to the time of incurrence of such new Indebtedness plus extent) necessary to reflect the amount of any premium or penalty or premium required to be paid under the existence and terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and amendments necessary to treat the Loans in respect thereof) shall be (taken and Commitments subject thereto as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Other Term Loans made pursuant theretoand/or Other Term Loan Commitments), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerDesignated Company, to effect the provisions of this Section 2.15Section. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).1087312.03B-CHISR01A1209777.02-CHISR02A - MSW
(gb) [reserved].
(h) Any New Refinancing Term Commitment This Section 2.24 shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring supersede any Refinancing Term Loans, the Borrower may at any time provisions in Section 2.14 or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Section 11.02 to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Refinancing Amendments. (a) The Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Refinancing Term Loan Request”), request (i) the establishment of one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the then-existing Class or Classes of Term Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or CommitmentsTerm Loans, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the LendersLenders holding such proposed Refinanced Debt.
(b) Each Refinancing Term Loan Request from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the proposed Refinanced Debt with respect thereto. Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may made on a Refinancing Closing Date (as defined below) shall be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. Refinancing Term Loans may be made by any existing Lender (but no existing Lender will have an obligation to make any Refinancing Term Commitment, nor will the Borrower have any obligation to approach any existing Lender to provide any Refinancing Term Commitment) or by any Additional Lender (each such Additional Lender providing such Refinancing Term Commitment or Refinancing Term Loan, a “Refinancing Term Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans to the extent such consent, if any, would be required under Section 11.6(b)(iii) for an assignment of Term Loans, to such Additional Lender.
(c) On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.152.14, (i) each Refinancing Term Lender of such Class shall make a Term Loan Loan, severally, but not jointly or jointly and severally with the other Refinancing Term Lenders, to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(cd) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount The terms, provisions and proposed terms documentation of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion Commitments of any Class shall be as agreed between the Borrower, the applicable Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making Lenders providing such Refinancing Term Loans if such consent would be required under or Refinancing Term Commitments and the Administrative Agent (in the case of the Administrative Agent, only with respect to terms and provisions not otherwise specified in this Section 10.07(b) for an assignment 2.14 that adversely affect the rights or obligations of the Administrative Agent), and except as otherwise set forth herein, to the extent not substantially identical to any Class of Term Loans to such Lender or Additional Lender; providedexisting on the Refinancing Closing Date, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and consistent with clauses (i) through (vi) below and otherwise shall be no more restrictive, taken as a whole (as applicabledetermined in good faith by the Borrower), than the terms applicable to the Class of Term Loans being Refinanced (except for (1) covenants and events of default applicable only to periods after the Maturity Date (as of the applicable Refinancing Closing Date) or that are also added for the benefit of the Term Loans existing on such Refinancing Closing Date and (2) pricing, fees, rate floors, amortization or maturity). In any event each Refinancing Term Loan and Refinancing Term Commitment:
(i) at the Borrower’s option, may rank pari passu or junior in right of payment with the Obligations under the then existing Term Loans, may be pari passu or junior in right of security with the Obligations under the then existing Term Loans (and, if junior in right of security, subject to an Acceptable Intercreditor Agreement) or may be unsecured;
(ii) as of the Refinancing Closing Date, shall not mature earlier than the Maturity Date of the Refinanced Debt;
(iii) shall be met, assuming that have a Weighted Average Life to Maturity not shorter than the making or provision remaining Weighted Average Life to Maturity of the Refinanced Debt on the date of Incurrence of such Refinancing Term Loans is (except by virtue of amortization or prepayment of the Refinanced Debt prior to the time of such Incurrence);
(iv) shall have an assignment applicable margin and, subject to clauses (d)(ii) and (d)(iii) above, amortization determined by the Borrower and the applicable Refinancing Term Lenders;
(v) shall not be subject to any Guarantee by any Person other than a Loan Party and shall not include any borrower other than the Borrower and, to the extent secured, such Refinancing Term Loans shall not be secured by assets other than Collateral (except pursuant to an escrow or similar arrangement with respect to the proceeds of such Refinancing Term Loans Loans) and may not be secured pursuant to such Person any security documentation that is more restrictive to the Borrower and the Guarantors than this Agreement and the other Loan Documents; and
(each such existing Lender or Additional Lender providing such Commitment or Loanvi) may, a “in the case of any Refinancing Term Lender” andLoans that are pari passu in right of payment and right of security with then existing Term Loans, collectivelyprovide for the ability to participate on a pro rata basis, “or on a less than pro rata basis (but not on a greater than pro rata basis), in any voluntary or mandatory prepayments of such Term Loans hereunder, as specified in the applicable Refinancing Lenders”)Amendment.
(de) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such the Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$$5,000,000 and shall be in an increment of C$$1,000,000 (provided that such amount may be less than C$$5,000,000 and not in an increment of C$$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is Debt);
(ii) after giving effect to such Refinancing Term Commitments, (A) the representations and warranties made by the Borrower and each Guarantor contained herein and in the form other Loan Documents shall be true and correct in all material respects on and as of Term Loanssuch closing date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects, as of such earlier date (provided that, to the extent any such representation and warranty is qualified by, or subject to, “materiality”, “Material Adverse Effect” or similar language, the same shall be true and correct in all respects),; (B) no Event of Default shall have occurred and be continuing; and (C) the Borrower shall have delivered on such closing date an Officers’ Certificate certifying the satisfaction of the conditions set forth in the foregoing clauses (A) and (B); and
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent principal amount (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendmentsaccreted value, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the such Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on not exceed the principal amount (or accreted value, if applicable) of each Borrowing) so that each Lender under such Class will participate proportionately the Refinanced Debt (plus the amount of unpaid accrued or capitalized interest and premiums thereon (including make-whole premiums, prepayment premiums, tender premiums and amounts required to be paid in each then outstanding Borrowing of Term Loans under such Class in accordance connection with its Pro Rata Sharedefeasance and satisfaction and discharge), underwriting discounts, original issue discount, defeasance costs, fees (including upfront fees), commissions and expenses).
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(iif) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement established pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Refinancing Term Lender agreeing to provide providing such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, Refinancing Term Loans and the Administrative Agent. The Refinancing Amendment may, without the consent of any other LendersLoan Party, agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.152.14, including, if applicable, amendments as deemed necessary by the Administrative Agent in its reasonable judgment to effect any lien subordination and associated rights of the applicable Lenders to the extent any Refinancing Term Loans are to rank junior in right of security. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, substantially concurrently, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (U.S. Concrete, Inc.)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, Representative may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(i)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower Representative proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments Loans on the Refinancing Effective Date each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans;
(iii) the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no shorter than the then-remaining Weighted Average Life to Maturity of the refinanced Term Loans;
(iv) the aggregate principal amount of the Refinancing Term Loans shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(v) the covenants and events of default applicable to such Refinancing Term Loans taken as a whole shall (xas determined by Parent in good faith) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to Parent and its Subsidiaries than, the Borrower terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Guarantors Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding);
(vi) [reserved];
(vii) there shall be no borrower (other than the Borrowers) and no guarantors (other than the Loan Documents,Parties) in respect of such Refinancing Term Loans;
(iiviii) Refinancing Term Loans shall not mature earlier be secured by any asset of Parent or any of its subsidiaries other than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms Collateral; and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.11(b)(i)(2)) hereunder, as specified in the applicable Refinancing Amendment.
(b) Any Borrower may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to a Borrower.
(c) [Reserved].
(d) [Reserved].
(e) Any Borrower and each Lender providing the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender applicable Refinancing Term Loans shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard execute and deliver to the control of remedies) Administrative Agent an amendment to this Agreement (such notes, a “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing DebtAmendment”) and (C) senior unsecured or subordinated unsecured Indebtedness in such other documentation as the form of one or more series of senior unsecured or subordinated unsecured notes or loans (Administrative Agent shall reasonably specify to evidence such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).Term
Appears in 1 contract
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each caseone or more additional Facilities (each, established in exchange fora “Refinancing Revolving Facility”) providing for revolving credit commitments (“Refinancing Revolving Credit Commitments” and the revolving loans thereunder, “Refinancing Revolving Loans”) or Refinancing Notes pursuant to extendprocedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower, renew, replace, repurchase, retire or refinance, all Net Proceeds of which are used to refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or any class of Revolving Credit Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loaneach, a “Refinancing Term Lender” and, collectively, “Refinancing LendersEffective Date”).
(d) The effectiveness of any Refinancing Amendment, and on which the Borrower proposes that the Refinancing Term Loans, the Refinancing Revolving Credit Commitments thereunder, or Refinancing Notes shall be subject made or become effective, as applicable, which shall be a date not earlier than five (5) Business Days after the date on which such notice is delivered to the satisfaction on the date thereof Administrative Agent (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in or such Refinancing Amendment:
(i) after giving effect shorter period agreed to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before and immediately after giving effect to the borrowing of such Refinancing Term Loans and the establishment of any Refinancing Revolving Credit Commitments shall (x) rank pari passu or junior on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans or Refinancing Notes shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans and no Refinancing Revolving Credit Commitment shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Credit Commitments being refinanced;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then of the refinanced Term Loans;
(A) the aggregate principal amount of the Refinancing Term Loans or Refinancing Notes shall not exceed the outstanding principal amount of the refinanced Term Loans and (B) after giving effect to the establishment of any Refinancing Revolving Credit Commitments and any concurrent reduction in effect for the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of the Refinancing Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Refinanced Debt Replacement Effective Date, in each case under clauses (prior A) or (B) above, plus amounts used to any extension thereto),
(iv) the currency, discountspay fees, premiums, fees, optional prepayment costs and redemptions terms and, subject to clauses expenses (iiincluding original issue discount) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will Loans, Refinancing Revolving Facility or Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi, Refinancing Revolving Credit Commitments or Refinancing Notes, as applicable) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Refinancing Lenders providing Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Initial Term B Loans (except to the extent such covenants and other terms apply solely to any period after the then applicable Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Refinancing Term Commitments Loans, Refinancing Revolving Facilities or Refinancing Notes may contain any financial maintenance covenants, so long as any such covenant shall not be more restrictive to the Borrower than (or in addition to) those applicable to the applicable Refinanced Debt Term Loans or Revolving Credit Commitment then outstanding (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall covenants are also apply added for the benefit of the Term Commitments (and any Lenders, which shall not require consent of the Lenders holding the Term Loans made pursuant theretoor Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement effective on such Refinancing Effective Date);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans, Refinancing Revolving Facilities and Refinancing Notes;
(vii) Refinancing Term Loans, Refinancing Revolving Credit Commitments and Refinancing Notes shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral; and
(xiiviii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described Loans and Refinancing Notes may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class asany mandatory prepayments hereunder, and have identical terms to, as specified in the applicable Class of Term Loans to which they applyRefinancing Amendment.
(fb) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing Section 9.04 to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange forLoans, Refinancing Revolving Credit Commitments or Refinancing Notes; provided, that any Lender offered or approached to extendprovide all or a portion of the Refinancing Term Loans, renew, replace, repurchase, retire Refinancing Revolving Credit Commitments or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced DebtRefinancing Notes may elect or decline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan, Refinancing Revolving Credit Commitments or Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional Facilities (each, a “Replacement Revolving Facility”) providing for revolving commitments (“Replacement Revolving Credit Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Credit Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that (i) immediately before and immediately after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied, (ii) after giving effect to the establishment of any Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Credit Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Credit Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to fees, interest rates and other pricing terms) and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Credit Commitments and taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date in effect at the time of incurrence or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Replacement Revolving Facilities may contain any financial maintenance covenants, so long as any such covenant shall not be tighter than (or in addition to) those applicable to the Term Loans or Revolving Credit Commitment then outstanding (unless such covenants are also added for the benefit of the Lenders holding the Term Loans or Revolving Credit Commitments then outstanding, which shall not require consent of the Lenders holding the Term Loans or Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement upon the applicable Replacement Revolving Facility Effective Date); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantor) in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Credit Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral.
(d) The Borrower may approach any Lender or any other Person that would be a permitted assignee of a Revolving Credit Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Credit Commitments for all purposes of this Agreement; provided that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Credit Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans, Refinancing Revolving Credit Commitments and/or Replacement Revolving Credit Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify and is reasonably acceptable to the Borrower to evidence such Refinancing Term Loans, Refinancing Revolving Credit Commitments and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan, (B) if a Lender is providing a Refinancing Revolving Credit Commitment, such Lender will be deemed to have an Other Revolving Credit Commitment having the terms of such Refinancing Revolving Credit Commitment and (C) if a Lender is providing a Replacement Revolving Credit Commitment, such Lender will be deemed to have an Other Revolving Credit Commitment having the terms of such Replacement Revolving Credit Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.20), (i) no Refinancing Term Loan, Refinancing Revolving Credit Commitment or Replacement Revolving Credit Commitment is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of any Refinancing Term Loan, Refinancing Revolving Credit Commitment or Replacement Revolving Credit Commitment at any time or from time to time after the Closing Date issueother than those set forth in clauses (a) or (c) above, incur or otherwise obtain as applicable, and (it being understood that no Lender iii) all Refinancing Term Loans, Refinancing Revolving Credit Commitments, Replacement Revolving Credit Commitments and all obligations in respect thereof shall be required to provide any such Indebtedness) (A) secured Indebtedness Obligations under a separate agreement this Agreement and the other Loan Documents that rank equally and ratably in the form right of one or more series of senior secured notes that are secured on a pari passu basis security with the Obligations (but without regard other Secured Obligations. Notwithstanding anything to the control of remedies) (such notescontrary, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness this Section 2.20 shall supersede any provisions in Section 2.15 or Section 9.02 to the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Samples: Credit Agreement (Adeia Inc.)
Refinancing Amendments. (a) The Borrower may, at any time On one or from time to time more occasions after the Closing Date, the Borrower may, by notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) Refinancing Term Commitments in respect of all or any portion of the establishment of one or more new Classes of Term Loans under this Agreement (of any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing including any Incremental Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the LendersLoans) then outstanding under this Agreement.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.152.17, (i) each Term Lender that agrees to such Refinancing Loan Request (a “Refinancing Term Lender Lender”) of such Class shall make a Refinancing Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 2.17 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect theretoLoans. Refinancing Term Loans may be made provided by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such the Refinancing Amendment:
(i) after giving effect to such Refinancing Term CommitmentsCommitments and the Refinancing Term Loans to be made pursuant thereto, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),satisfied;
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 […***…] and shall be in an increment of C$1,000,000 […***…] (provided that such amount may be less than C$5,000,000 […***…] and not in an increment of C$1,000,000 […***…] if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term LoansLoans to be refinanced thereby),; and
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (A) (I) customary officer’s certificates and legal opinions, board resolutions and officers’ certificates (IIincluding solvency certificates) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (conformed as appropriate) 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), Agent and (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Guaranty and the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any such Refinancing Term Commitment is Lenders are provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms terms, provisions and provisions documentation of the Refinancing Term Loans and Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders applicable Refinancing Term Lenders providing such Refinancing Term Commitments, and except as otherwise set forth herein, to the extent not identical to any Class of Term Loans existing on the Refinancing Facility Closing Date, shall satisfy the applicable requirements set forth in the provisos to the definition of “Credit Agreement Refinancing Indebtedness”; provided, that:
provided that (i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral Loans may participate on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis) in any voluntary prepayments of Term Loans hereunder and (II) a pro rata basis except in the case of or less than pro rata basis (but not on a prepayment under Section 2.05(b)(iii)(B)greater than pro rata basis) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
, (viiii) [reserved]
(viii) [reserved],
(ix) Refinancing shall have the same rank in right of payment with respect to the other Senior Credit Obligations as the applicable Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest being refinanced and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereofiii) shall be (taken as a whole) no more favorable (as reasonably determined secured by the Borrower Collateral and shall have the same rank in good faith) right of security with respect to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to other Senior Credit Obligations as the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they applybeing refinanced.
(f) Commitments in respect Each of Refinancing Term Loans shall become Commitments under the parties hereto hereby agrees that this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, and the other Loan Documents, executed by the Borrower, each existing Lender agreeing Documents may be amended pursuant to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The a Refinancing Amendment mayAmendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of Section 10.01(d) and (iii) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance2.17, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B)Lenders hereby expressly authorize the Administrative Agent and the Collateral Agent to enter into any such Refinancing Amendment.
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may may, upon notice to the Administrative Agent, at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Credit Agreement Refinancing Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis accordance with the Obligations definition of “Credit Agreement Refinancing Indebtedness”.
(but without regard h) This Section 2.17 shall supersede any provisions in Section 2.13 or 10.01 to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Refinancing Amendments. (a) The Borrower mayNotwithstanding anything to the contrary in this Agreement, at any time or from time including Section 2.18(c) (which provisions shall not be applicable to time after this Section 2.23), the Closing Date, Borrowers may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrowers propose that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.01 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and the Lenders thereunder; provided that a currency expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than Canadian Dollars provisions relating to original issue discount, upfront fees, interest rates and U.S. Dollars any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the consent of provisions set forth in Section 2.21(b)(v)) and optional prepayment or mandatory prepayment or redemption terms, which shall be as agreed between the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower Borrowers and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Lux Borrower in good faith) be substantially similar to, or not materially less favorable to the Parent and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the with respect to Refinancing Term Loans may provide for secured by Liens on the ability Collateral that rank junior in right of security to participate on the 2017 Term B Loans and the 2018 Incremental Term Loans, such Liens will be subject to a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,Permitted Junior Intercreditor Agreement;
(vii) [reserved]there shall be no direct or contingent obligor in respect of such Refinancing Term Loans except (x) the borrowers shall be comprised solely of any or all of the Lux Borrower, the Co-Borrower and the Additional Borrowers (on a joint and several basis as provided in this Agreement) and (y) the guarantors shall constitute the Guarantors hereunder;
(viii) [reserved],Refinancing Term Loans shall not be secured by any asset of the Parent and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.11(b)(2)) hereunder, as specified in the applicable Refinancing Amendment.
(b) The Borrowers may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower may at any time or from time Borrowers.
(c) Notwithstanding anything to time after the Closing Date issuecontrary in this Agreement, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtednessincluding Section 2.18(c) (A) secured Indebtedness under a separate agreement in which provisions shall not be applicable to this Section 2.23), the form of Borrowers may by written notice to the Administrative Agent establish one or more series of senior secured notes that are secured on a pari passu basis with additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the Obligations (but without regard to the control of remedies) (such notesrevolving loans thereunder, “Permitted Pari Passu Secured Refinancing DebtReplacement Revolving Loans”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, which replace in whole or in partpart any Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrowers propose that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its sole discretion); provided that: (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.01 shall be satisfied; (ii) after giving effect to the establishment of any existing Class Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date; (iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or Classes require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date in effect at the time of incurrence for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrowers and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrowers, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall (as determined by the Lux Borrower in good faith) be substantially similar to, or not materially more favorable to the Lenders providing such Replacement Revolving Facility Commitments than, those, taken as a whole, applicable to the Initial Revolving Loans (except to the extent such Loanscovenants and other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence or are otherwise reasonably acceptable to the Administrative Agent); (v) there shall be no direct or contingent obligor in respect of such Replacement Revolving Facility except (x) the borrowers shall be comprised solely of any or all of the Lux Borrower, “Refinanced Loans”)the Co-Borrower and the Additional Borrowers (on a joint and several basis as provided in this Agreement) and (y) the guarantors shall constitute the Guarantors hereunder; and (vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of the Parent and its subsidiaries other than the Collateral, and any such Replacement Revolving Facility Commitments shall be secured on the same basis as the Revolving Facility Commitments being replaced. Solely to the extent that an Issuing Bank or Swingline Lender is not a replacement issuing bank or replacement swingline lender, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank or Swingline Lender shall not be required to issue any letters of credit or swingline loan under such Replacement Revolving Facility and, to the extent it is necessary for such Issuing Bank or Swingline Lender to withdraw as an Issuing Bank or Swingline Lender, as the case may be, at the time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank or Swingline Lender, as the case may be, in its sole discretion. The Borrowers agree to reimburse each Issuing Bank or Swingline Lender, as the case may be, in full upon demand, for any reasonable and documented out-of-pocket cost or expense attributable to such withdrawal.
Appears in 1 contract
Samples: Incremental Assumption Agreement (Mallinckrodt PLC)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.03 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and the Lenders thereunder; provided that a currency expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than Canadian Dollars provisions relating to original issue discount, upfront fees, interest rates and U.S. Dollars any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the consent of the Administrative Agent (not to provisions set forth in Section 2.21(b)(v)) and optional prepayment or mandatory prepayment or redemption terms, which shall be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) to the extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) with respect to Refinancing Term Loans secured by Liens on the Collateral that rank junior in right of security to the Initial Term Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement;
(vii) there shall be no borrower (other than the Borrower) and no guarantors (2other than the Guarantors) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for in respect of such Refinancing Term Commitments at Loans;
(viii) Refinancing Term Loans shall not be secured by any asset of the time Borrower and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the case of incurrence or issuance thereof (in each casesuch prepayments pursuant to Section 2.11(b)(2)) hereunder, as determined by specified in the applicable Refinancing Amendment.
(b) The Borrower in good faith)may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the Refinancing Term Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may at by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any time or from time to time Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the Closing date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that: (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.03 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date issueplus amounts used to pay fees, incur premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Facility Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence or are otherwise obtain reasonably acceptable to the Administrative Agent); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral, and (vii) if such Replacement Revolving Facility is secured by Liens on the Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement. In addition, the Borrower may establish Replacement Revolving Facility Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Facility Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement Revolving Facility Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted Assignee hereunder) so long as (i) before and after giving effect to the establishment such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 4.03 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Facility Commitments, (ii) the remaining life to termination of such Replacement Revolving Facility Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Facility Commitments shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans, (iv) with respect to Replacement Revolving Loans secured by Liens on Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement, (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent). Solely to the extent that an Issuing Bank or Swingline Lender is not a replacement issuing bank or replacement swingline lender, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank or Swingline Lender shall not be required to provide issue any letters of credit or swingline loan under such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Replacement Revolving Facility and, to the control extent it is necessary for such Issuing Bank or Swingline Lender to withdraw as an Issuing Bank or Swingline Lender, as the case may be, at the time of remedies) (the establishment of such notesReplacement Revolving Facility, “Permitted Pari Passu Secured Refinancing Debt”)such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank or Swingline Lender, (B) secured Indebtedness in as the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loanscase may be, in its sole discretion. The Borrower agrees to reimburse each caseIssuing Bank or Swingline Lender, that are secured on a pari passu or subordinated basis with as the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”)case may be, in each casefull upon demand, in exchange for, for any reasonable and documented out-of-pocket cost or expense attributable to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)withdrawal.
Appears in 1 contract
Samples: Credit Agreement (Dollar Tree Inc)
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice to each Co-Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in respect of all or any portion of the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of one or more new Classes of Term Loans made to such Co-Borrower then outstanding under this Agreement (which will be deemed to include any then outstanding Other Term Loans), in the form of Other Term Loans or Other Loan Term Loan Commitments, in each case pursuant to a Refinancing Amendment; provided that such new ClassCredit Agreement Refinancing Indebtedness (i) will rank pari passu in right of payment and of security with the other Loans and Commitments hereunder, “New Refinancing Term Commitments”) or (ii) increases will have such pricing and optional prepayment terms as may be agreed by the Designated Company and the Lenders thereof, (iii) will have a maturity date that is not prior to one or more existing Classes of term loans under this Agreement the maturity date of, and will have a Weighted Average Life to Maturity that is not shorter than the Term Loans being refinanced, (any such increase iv) subject to an existing Classclause (ii) above, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange forwill have terms and conditions that are substantially identical to, or less favorable to extendthe investors providing such Credit Agreement Refinancing Indebtedness than, renewthe Refinanced Debt and (v) the proceeds of such Credit Agreement Refinancing Indebtedness shall be applied, replacesubstantially concurrently with the incurrence thereof, repurchase, retire or refinance, in whole or in part, as selected by to the Borrower, any one or more prepayment of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing outstanding Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of being so refinanced; provided further that the terms and conditions in this Section 2.15, (i) each applicable to such Credit Agreement Refinancing Term Lender of such Class shall make a Term Loan to Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class Designated Company and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from Lenders thereof and applicable only during periods after the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender Latest Maturity Date that is an Affiliated Lender in effect on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) obtained. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term CommitmentsSection 4.03 and, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s of legal opinions, board resolutions, officers’ certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, and/or reaffirmation agreements consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing under Section 4.02. Each Class of Term Loans Credit Agreement Refinancing Indebtedness incurred under this Section 2.24 shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the in an aggregate principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall is (x) rank pari passu or junior not less than $50,000,000 in right the case of payment and shall be unsecured or rank pari passu or junior in right of security with all Other Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt Loans and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive an integral multiple of $1,000,000 in excess thereof. The Administrative Agent shall promptly notify each Lender as to the Borrower and the Guarantors than the Loan Documents,
(ii) effectiveness of each Refinancing Term Loans shall not mature earlier than the Maturity Date Amendment. Each of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity parties hereto hereby agrees that, upon the effectiveness of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans Amendment, this Agreement shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt deemed amended to the extent permanently terminated at (but only to the time of incurrence of such new Indebtedness plus extent) necessary to reflect the amount of any premium or penalty or premium required to be paid under the existence and terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and amendments necessary to treat the Loans in respect thereof) shall be (taken and Commitments subject thereto as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Other Term Loans made pursuant theretoand/or Other Term Loan Commitments), and
(xii) notwithstanding the foregoing, . Any Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing 1234400.03-CHISR02A - MSW Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerDesignated Company, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B)Section.
(gb) [reserved].
(h) Any New Refinancing Term Commitment This Section 2.24 shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring supersede any Refinancing Term Loans, the Borrower may at any time provisions in Section 2.14 or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Section 11.02 to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Samples: Refinancing Amendment to Credit Agreement (Novelis Inc.)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.03 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and the Lenders thereunder; provided that a currency expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than Canadian Dollars provisions relating to original issue discount, upfront fees, interest rates and U.S. Dollars any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the consent of the Administrative Agent (not to provisions set forth in Section 2.21(b)(v)) and optional prepayment or mandatory prepayment or redemption terms, which shall be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) to the extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) with respect to Refinancing Term Loans secured by Liens on the Collateral that rank junior in right of security to the Term B-1 Loans and/or Term B-2 Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement;
(vii) there shall be no borrower (other than the Borrower) and no guarantors (2other than the Guarantors) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for in respect of such Refinancing Term Commitments at Loans;
(viii) Refinancing Term Loans shall not be secured by any asset of the time Borrower and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the case of incurrence or issuance thereof (in each casesuch prepayments pursuant to Section 2.11(b)(2)) hereunder, as determined by specified in the applicable Refinancing Amendment.
(b) The Borrower in good faith)may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the Refinancing Term Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may at by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any time or from time to time Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the Closing date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that: (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.03 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date issueplus amounts used to pay fees, incur premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Facility Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence or are otherwise obtain reasonably acceptable to the Administrative Agent); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral, and (vii) if such Replacement Revolving Facility is secured by Liens on the Collateral that rank junior in right of security to the InitialTranche A Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement. In addition, the Borrower may establish Replacement Revolving Facility Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Facility Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement Revolving Facility Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted Assignee hereunder) so long as (i) before and after giving effect to the establishment such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 4.03 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Facility Commitments, (ii) the remaining life to termination of such Replacement Revolving Facility Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Facility Commitments shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans, (iv) with respect to Replacement Revolving Loans secured by Liens on Collateral that rank junior in right of security to the InitialTranche A Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement, (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent). Solely to the extent that an Issuing Bank or Swingline Lender is not a replacement issuing bank or replacement swingline lender, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank or Swingline Lender shall not be required to provide issue any letters of credit or swingline loan under such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Replacement Revolving Facility and, to the control extent it is necessary for such Issuing Bank or Swingline Lender to withdraw as an Issuing Bank or Swingline Lender, as the case may be, at the time of remedies) (the establishment of such notesReplacement Revolving Facility, “Permitted Pari Passu Secured Refinancing Debt”)such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank or Swingline Lender, (B) secured Indebtedness in as the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loanscase may be, in its sole discretion. The Borrower agrees to reimburse each caseIssuing Bank or Swingline Lender, that are secured on a pari passu or subordinated basis with as the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”)case may be, in each casefull upon demand, in exchange for, for any reasonable and documented out-of-pocket cost or expense attributable to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)withdrawal.
Appears in 1 contract
Samples: Credit Agreement (Dollar Tree Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, Representative may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(i)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower Representative proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments Loans on the Refinancing Effective Date each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans;
(iii) the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no shorter than the then-remaining Weighted Average Life to Maturity of the refinanced Term Loans;
(iv) the aggregate principal amount of the Refinancing Term Loans shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(v) the covenants and events of default applicable to such Refinancing Term Loans taken as a whole shall (xas determined by Parent in good faith) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to Parent and its Subsidiaries than, the Borrower terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Guarantors Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding);
(vi) [reserved];
(vii) there shall be no borrower (other than the Borrowers) and no guarantors (other than the Loan Documents,Parties) in respect of such Refinancing Term Loans;
(iiviii) Refinancing Term Loans shall not mature earlier be secured by any asset of Parent or any of its subsidiaries other than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms Collateral; and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.11(b)(i)(2)) hereunder, as specified in the applicable Refinancing Amendment.
(b) Any Borrower may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to a Borrower.
(c) [Reserved].
(d) [Reserved].
(e) Any Borrower and each Lender providing the Borrower may applicable Refinancing Term Loans shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans. For purposes of this Agreement and the other Loan Documents, if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.23), (i) the aggregate amount of Refinancing Term Loans will not be included in the calculation of clause (a) of the definition of “Incremental Amount”, (ii) no Refinancing Term Loan is required to be in any minimum amount or any minimum increment, (iii) there shall be no condition to any incurrence of any Refinancing Term Loan at any time or from time to time after the Closing Date issue, incur or otherwise obtain other than those set forth in clause (it being understood that no Lender a) above and (iv) all Refinancing Term Loans and all obligations in respect thereof shall be required to provide any such Indebtedness) (A) secured Indebtedness Loan Obligations under a separate agreement this Agreement and the other Loan Documents that rank equally and ratably in the form right of one or more series of senior secured notes that are secured on a pari passu basis security with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or Initial Term Loans and other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Loan Obligations.
Appears in 1 contract
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) covenants or to the extent such other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date and (2) pricingDate, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the elects to add such more restrictive terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments other Facilities, or are otherwise reasonably acceptable to the Administrative Agent);
(and any vi) with respect to Refinancing Term Loans made pursuant thereto)secured by Xxxxx on the Collateral that rank junior in right of security to the Revolving Facility Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement;
(vii) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans; and
(xiiviii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement not be secured by any asset of the Borrower and its subsidiaries other than the Collateral.
(b) The Borrower may approach any Lender or any other person that would be a permitted Assignee pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing Section 9.04 to provide such Commitmentall or a portion of the Refinancing Term Loans; provided, if any, each Additional that any Lender agreeing offered or approached to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may at any time or from time by written notice to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of Administrative Agent establish one or more series of senior secured notes that are secured on a pari passu basis with additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the Obligations (but without regard to the control of remedies) (such notesrevolving loans thereunder, “Permitted Pari Passu Secured Refinancing DebtReplacement Revolving Loans”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, which replace in whole or in partpart any Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that: (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied; (ii) after giving effect to the establishment of any existing Class Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or Classes of Loans require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Loans, “Refinanced Loans”).Replacement Revolving Facility (other than provisions relating to
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Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Third Amendment Effective Date, by notice to the Administrative Agent (a “Borrower may obtain from any Lender or any Additional Lender Credit Agreement Refinancing Loan Request”), request (i) Indebtedness in respect of all or any portion of the establishment of one or more new Classes of Term Loans then outstanding under this Agreement (which for this purpose will be deemed to include any such new Class, “New then outstanding Refinancing Term Commitments”) Loans), in the form of Refinancing Term Loans or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “in each case pursuant to a Refinancing Term Commitments”Amendment; provided that such Credit Agreement Refinancing Indebtedness (i) will rank pari passu in right of payment and of security with the other Loans and Commitments hereunder, (ii) have such pricing and optional prepayment terms as may be agreed by the Borrower and the Lenders thereof, (iii) except as otherwise provided in Section 2.05(b)(ii)(B) or as may be agreed to by the Lenders and Additional Lenders providing such Credit Agreement Refinancing Indebtedness in the respective Refinancing Amendment (but solely as it relates to such Lenders waiving their pro rata share of any applicable prepayment or repayment), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for shall be prepaid and repaid (or offered to be repaid in the case of Section 2.05(c)) on a pro rata basis with all purposes voluntary prepayments and mandatory prepayments (other than amortization payments) of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments the other Classes of any Class are effectedLoans and (iv) otherwise be treated hereunder no more favorably, subject including with respect to covenants and events of default, than the satisfaction of Refinanced Debt; provided further that the terms and conditions in this Section 2.15, (i) each applicable to such Credit Agreement Refinancing Term Lender of such Class shall make a Term Loan to Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from Lenders thereof and applicable only during periods after the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender Latest Maturity Date that is an Affiliated Lender in effect on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) obtained. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
Sections 4.01 (i) after giving effect to such Refinancing Term Commitments), the conditions of Sections 4.02(a(j) and (bk) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) and, to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (Ai) (I) customary officer’s certificates and legal opinions, board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, officers’ certificates consistent with those delivered on the Closing Date (other than changes to such legal opinions opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, Agent and (Cii) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Collateral Agent (including Mortgage amendments, if applicable) in order to ensure that any the Refinancing Term Commitment is Loans are provided with the benefit of the applicable Loan Documents, and
(iv) . Each tranche of Credit Agreement Refinancing Indebtedness incurred under this Section 2.15 shall be in an aggregate principal amount that is not less than $50,000,000. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Term Amendment. Each of the parties hereto hereby agrees that this Agreement and the other Loans made Documents may be amended pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Refinancing Term Loans and/or Refinancing Term Commitments), (ii) provide certain class protection to the Lenders and Additional Lenders providing such Credit Agreement Refinancing Indebtedness with respect to voluntary prepayments and mandatory prepayments, (iii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of the second paragraph of Section 10.01 and (iv) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15Section, and the Required Lenders hereby expressly authorize the Administrative Agent to enter into any such Refinancing Amendment.”.
25. The Borrower will use the proceeds, if any, Article II of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, Credit Agreement is hereby amended by inserting the applicable Refinanced Debt, in each case, in accordance with following new Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class 2.16 immediately following Section 2.15 of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).said Article:
Appears in 1 contract
Refinancing Amendments. (a) The i. Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.12(g), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) 1. before and after giving effect to the Borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 5.2 shall be unsecured or rank pari passu or junior in right satisfied;
2. the final maturity date of security with all the Refinancing Term Loans shall be no earlier than the maturity date of the refinanced Term Loans, Permitted Pari Passu Secured ;
3. the weighted average life to maturity of such Refinancing Debt and (Term Loans shall be no shorter than the then-remaining weighted average life to the extent secured by all or a portion maturity of the Collateral on a pari passu basis with any refinanced Term Loans;
4. the aggregate principal amount of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than exceed the Maturity Date outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
5. all other terms applicable Refinanced Debt as then in effect,
(iii) to such Refinancing Term Loans shall have a Weighted Average Life (other than provisions relating to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currencyoriginal issue discount, discounts, premiums, upfront fees, interest rates and any other pricing terms (optional prepayment and redemptions or mandatory prepayment or redemption terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) to the extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
6. there shall be no borrower (other than the Borrower) and no guarantors (2other than the Guarantors) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for in respect of such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).;
Appears in 1 contract
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice the Borrower may obtain from any existing Lender or any other Person reasonably satisfactory to the Borrower and the Administrative Agent (a any such existing Lender or other Person being called an “Additional Refinancing Loan RequestLender”), request (i) Credit Agreement Refinancing Debt in respect of all or any portion of the establishment of one or more new Classes of Term Loans then outstanding under this Agreement (which for purposes of this clause (a) will be deemed to include any then outstanding Other Loans), in the form of Other Loans or Other Commitments, in each case pursuant to a Refinancing Amendment; provided that such new ClassCredit Agreement Refinancing Debt (i) will rank pari passu or junior in right of payment and of security with the other Loans and Commitments hereunder, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement have such pricing, interest, fees, premiums and optional prepayment terms as may be agreed by the Borrower and the Additional Refinancing Lenders thereof, (iii) not be secured by any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”assets that do not constitute Collateral and (iv) except as permitted in clause (ii), in each casewill otherwise be treated hereunder no more materially favorably taken as a whole, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (including with respect to a particular Refinancing Term Commitment or Refinancing Term Loancovenants and events of default, such existing Loans or Commitments, “in the good faith determination of the Borrower than the Refinanced Debt”), whereupon ; providedfurther that the Administrative Agent shall promptly deliver a copy of each terms and conditions applicable to such notice Credit Agreement Refinancing Debt may provide for additional or different financial or other covenants or other provisions that are agreed by the Borrower and the applicable Additional Refinancing Lenders to each of the Lendersextent applicable only after the Latest Maturity Date as determined on the date such Credit Agreement Refinancing Debt is incurred or obtained.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to (i) the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions : (1) that the representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all material respects with the same effect as though made on and as of such Refinancing Amendment:
date (iit being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects), and (2) at the time of and immediately after giving effect to such Refinancing Term CommitmentsAmendment, the conditions of Sections 4.02(a) no Default shall have occurred and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
continuing, and, (ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the to receipt by the Administrative Agent of (A) (I1) customary officer’s certificates and legal opinions, board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, officers’ certificates consistent with those delivered on the Closing Date (other than changes to such legal opinions opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, Agent and (C2) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any such Credit Agreement Refinancing Term Commitment Debt is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(ec) The terms and provisions Each issuance of the Credit Agreement Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class Debt under Section 2.24(a) shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall in an aggregate principal amount that is (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt not less than $25,000,000 and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date an integral multiple of the applicable Refinanced Debt as then $1,000,000 in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect excess thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(fd) Commitments in respect Each of Refinancing Term Loans shall become Commitments under the parties hereto hereby agrees that this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, and the other Loan Documents, executed by the Borrower, each existing Lender agreeing Documents may be amended pursuant to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The a Refinancing Amendment mayAmendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Debt incurred pursuant thereto and (ii) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.152.24. The Borrower will use Required Lenders hereby expressly authorize the proceeds, if any, of the Refinancing Term Loans in exchange for, or Administrative Agent to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide enter into any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Amendment.
Appears in 1 contract
Samples: Loan Agreement (Akorn Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.05(b)(iv), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not less than ten (10) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the Borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the maturity date of the refinanced Term Loans;
(iii) the weighted average life to maturity of such Refinancing Term Loans shall be no shorter than the then-remaining weighted average life to maturity of the refinanced Term Loans;
(iv) the aggregate principal amount of the Refinancing Term Loans shall not mature earlier than exceed the Maturity Date outstanding principal amount of the applicable Refinanced Debt as then in effect,
(iii) Refinancing refinanced Term Loans shall have a Weighted Average Life plus amounts used to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, pay fees, optional prepayment expenses, commissions, underwriting discounts and redemptions terms and, subject to clauses (ii) premiums and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms, optional prepayment or mandatory prepayment or redemption terms shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) to the extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (2other than the Guarantors) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for in respect of such Refinancing Term Commitments at Loans;
(vii) Refinancing Term Loans shall not be secured by any asset of the time Borrower and its subsidiaries other than the Collateral; and
(viii) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the case of incurrence or issuance thereof (in each casesuch prepayments pursuant to Section 2.05(b)(iv)) hereunder, as determined by specified in the applicable Refinancing Amendment.
(b) The Borrower in good faith)may approach any Lender or any other person that would be an Eligible Assignee to provide all or a portion of the Refinancing Term Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) The Borrower may and each Lender providing the applicable Refinancing Term Loans shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans. For purposes of this Agreement and the other Loan Documents, if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have a Term Loan having the terms of such Refinancing Term Loan. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.16), (i) no Refinancing Term Loan is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of any Refinancing Term Loan at any time or from time to time after the Closing Date issue, incur or otherwise obtain other than those set forth in clause (it being understood that no Lender a) above and (iii) all Refinancing Term Loans and all obligations in respect thereof shall be required to provide any such Indebtedness) (A) secured Indebtedness Obligations under a separate agreement this Agreement and the other Loan Documents that rank equally and ratably in the form right of one or more series of senior secured notes that are secured on a pari passu basis security with the refinanced Term Loans and all Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)respect thereof.
Appears in 1 contract
Samples: Credit Agreement (Callaway Golf Co)
Refinancing Amendments. (a) The Borrower mayNotwithstanding anything to the contrary in this Agreement, at any time or from time to time after the Closing Date, Company may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each Loans. Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Company proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) in connection with the refinancing of any Class of Term Loans in part, before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) in connection with the refinancing of any Class of Term Loans in whole, before and after giving effect to the borrowing of such Refinancing Term Loans on the Refinancing Effective Date each of the conditions set forth in Section 4.02 shall be satisfied to the extent required by the Refinancing Amendment governing such Refinancing Term Loans;
(iii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iiiiv) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),refinanced Term Loans;
(v) the interest rate (including margin and floors) applicable to any aggregate principal amount of the Refinancing Term Loans will shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(vi) all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower Company and the Lenders providing such Refinancing Term Loans,
) taken as a whole shall (vias determined by the Company in good faith) be substantially similar to, or not materially less favorable to the Refinancing Company and its Subsidiaries than, the terms, taken as a whole, applicable to the Initial Term A Loans may provide for (except to the ability extent such covenants and other terms apply solely to participate on a pro rata basis, greater than any period after the then applicable Term Facility Maturity Date or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in are otherwise reasonably acceptable to the case of a prepayment under Section 2.05(b)(iii)(BAdministrative Agent)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,;
(vii) [reserved]there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans;
(viii) [reserved],Refinancing Term Loans shall not be secured by any asset of the Company and its Subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments hereunder, as specified in the principal amount applicable Refinancing Amendment.
(b) The Company may approach any Lender or any other person that would be a permitted assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower Company.
(c) Notwithstanding anything to the contrary in this Agreement, the Company may by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Credit Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Credit Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Company proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that (i) in connection with the replacement of any Class of Revolving Credit Commitments in part, before and after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied, (ii) in connection with the replacement of any Class of Revolving Credit Commitments in whole, before and after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied to the extent required by the documentation governing such Replacement Revolving Facility; (iii) after giving effect to the establishment of any Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iv) no Replacement Revolving Credit Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Credit Commitments being replaced; (v) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Company and the Lenders providing such Replacement Revolving Credit Commitments and (y) the amount of any letter of credit sublimit under such Replacement Revolving Facility, which shall be as agreed between the Company, the Lenders providing such Replacement Revolving Credit Commitments, the Administrative Agent and the replacement issuing lender, if any, under such Replacement Revolving Credit Commitments) taken as a whole shall (as determined by the Company in good faith) be substantially similar to, or not materially less favorable to the Company and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence or are otherwise reasonably acceptable to the Administrative Agent); (vi) there shall be no borrower (other than the Borrowers) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vii) Replacement Revolving Credit Commitments and extensions of credit thereunder shall not be secured by any asset of the Company and its Subsidiaries other than the Collateral. Solely to the extent that an Issuing Lender is not a replacement issuing lender, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Lender shall not be required to issue any letters of credit under such Replacement Revolving Facility and, to the extent it is necessary for such Issuing Lender to withdraw as an Issuing Lender at the time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Lender, in its sole discretion. The Company agrees to reimburse each Issuing Lender in full upon demand, for any reasonable and documented out-of-pocket cost or expense attributable to such withdrawal.
(d) The Company may approach any Lender or any other person that would be a permitted assignee of a Revolving Credit Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Credit Commitments for all purposes of this Agreement; provided that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Credit Commitments.
(e) The Company and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Credit Commitment, such Lender will be deemed to have an Other Revolving Credit Commitment having the terms of such Replacement Revolving Credit Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.24), (i) no Refinancing Term Loan or Replacement Revolving Credit Commitment is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Credit Commitment at any time or from time to time after other than those set forth in clauses (a) or (c) above, as applicable, and (iii) unless otherwise set forth in the Closing Date issueapplicable Refinancing Amendment, incur or otherwise obtain (it being understood that no Lender all Refinancing Term Loans, Replacement Revolving Credit Commitments and all obligations in respect thereof shall be required to provide any such Indebtedness) (A) secured Indebtedness Obligations under a separate agreement this Agreement and the other Loan Documents that rank equally and ratably in the form right of one or more series of senior secured notes that are secured on a pari passu basis security with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Initial Term A Loans and other Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Obligations.
Appears in 1 contract
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, Representative may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(i)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower Representative proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments Loans on the Refinancing Effective Date each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans;
(iii) the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no shorter than the then-remaining Weighted Average Life to Maturity of the refinanced Term Loans;
(iv) the aggregate principal amount of the Refinancing Term Loans shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(v) the covenants and events of default applicable to such Refinancing Term Loans taken as a whole shall (xas determined by Parent in good faith) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to Parent and its Subsidiaries than, the Borrower terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Guarantors Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding);
(vi) [reserved];
(vii) there shall be no borrower (other than the Borrowers) and no guarantors (other than the Loan Documents,Parties) in respect of such Refinancing Term Loans;
(iiviii) Refinancing Term Loans shall not mature earlier be secured by any asset of Parent or any of its subsidiaries other than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms Collateral; and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.11(b)(i)(2)) hereunder, as specified in the applicable Refinancing Amendment.
(b) Any Borrower may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to a Borrower.
(c) [Reserved].
(d) [Reserved].
(e) Any Borrower and each Lender providing the Borrower may applicable Refinancing Term Loans shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans. For purposes of this Agreement and the other Loan Documents, if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.23), (i) the aggregate amount of Refinancing Term Loans will not be included in the calculation of clause (a) of the definition of “Incremental Amount”, (ii) no Refinancing Term Loan is required to be in any minimum amount or any minimum increment, (iii) there shall be no condition to any incurrence of any Refinancing Term Loan at any time or from time to time after the Closing Date issue, incur or otherwise obtain other than those set forth in clause (it being understood that no Lender a) above and (iv) all Refinancing Term Loans and all obligations in respect thereof shall be required to provide any such Indebtedness) (A) secured Indebtedness Loan Obligations under a separate agreement this Agreement and the other Loan Documents that rank equally and ratably in the form right of one or more series of senior secured notes that are secured on a pari passu basis security with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or Term B-1-2 Loans and other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Loan Obligations.
Appears in 1 contract
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”)) or Refinancing Notes pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower, in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each Loans. Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of or Refinancing Notes shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before and immediately after giving effect to the borrowing of such Refinancing Term Commitments shall Loans on the Refinancing Effective Date each of the conditions set forth in Section 4.01(h)(ii)(A) and (xh)(ii)(B) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans or Refinancing Notes shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discountsaggregate principal amount of the Refinancing Term Loans or Refinancing Notes shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, fees, optional prepayment costs and redemptions terms and, subject to clauses expenses (iiincluding original issue discount) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will or Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Refinancing Lenders providing Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Initial Term B Loans (except to the extent such covenants and other terms apply solely to any period after the then applicable Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Refinancing Term Commitments Loans or Refinancing Notes may contain any financial maintenance covenants, so long as any such covenant shall not be more restrictive to the Borrower than (or in addition to) those applicable to the applicable Refinanced Debt Term Loans then outstanding (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall covenants are also apply added for the benefit of the Term Commitments (and any Lenders, which shall not require consent of the Lenders holding the Term Loans made pursuant theretothen outstanding and which the Administrative Agent shall add to this Agreement effective on such Refinancing Effective Date), ;
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans and Refinancing Notes;
(vii) Refinancing Term Loans and Refinancing Notes shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral; and
(xiiviii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described Loans and Refinancing Notes may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class asany mandatory prepayments hereunder, and have identical terms to, as specified in the applicable Class of Term Loans to which they applyRefinancing Amendment.
(fb) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing Section 9.04 to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange foror Refinancing Notes; provided, that any Lender offered or approached to extend, renew, replace, repurchase, retire provide all or refinance, and shall permanently terminate applicable commitments under, a portion of the applicable Refinanced DebtRefinancing Term Loans or Refinancing Notes may elect or decline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan or Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) The Borrower may and each Lender providing the applicable Refinancing Term Loans shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans. For purposes of this Agreement and the other Loan Documents, a Lender providing a Refinancing Term Loan will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.20), (i) no Refinancing Term Loan is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of any Refinancing Term Loan at any time or from time to time after the Closing Date issue, incur or otherwise obtain other than those set forth in clause (it being understood that no Lender a) above and (iii) all Refinancing Term Loans and all obligations in respect thereof shall be required to provide Obligations under this Agreement and the other Loan Documents that rank equally and ratably in right of security with the other Secured Obligations. In connection with any Refinancing Amendment, the Administrative Agent shall have received customary legal opinions or other certificates reasonably requested by it in connection with any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard transaction. Notwithstanding anything to the control of remedies) (such notescontrary, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness this Section 2.20 shall supersede any provisions in Section 2.15 or Section 9.02 to the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Refinancing Amendments. (a) The Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Refinancing Term Loan Request”), request (i) the establishment of one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the then-existing Class or Classes of Term Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or CommitmentsTerm Loans, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the LendersLenders holding such proposed Refinanced Debt.
(b) Each Refinancing Term Loan Request from the Borrower pursuant to this Section 2.4 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the proposed Refinanced Debt with respect thereto. Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may made on a Refinancing Closing Date shall be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. Refinancing Term Loans may be made by any existing Lender (but no existing Lender will have an obligation to make any Refinancing Term Commitment, nor will the Borrower have any obligation to approach any existing Lender to provide any Refinancing Term Commitment) or by any Additional Lender (each such Additional Lender providing such Refinancing Term Commitment or Refinancing Term Loan, a “Refinancing Term Lender”); provided that the Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans to the extent such consent, if any, would be required under Section 13.2 for an assignment of Term Loans, to such Additional Lender.
(c) On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.152.4, (i) each Refinancing Term Lender of such Class shall make a Term Loan Loan, severally, but not jointly or jointly and severally with the other Refinancing Term Lenders, to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(cd) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount The terms, provisions and proposed terms documentation of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and Borrower, the lenders providing such applicable Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Loans or Refinancing Term Loans may provide for Commitments and the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis Agent (but not greater than a pro rata basis except in the case of a prepayment under the Agent, only with respect to terms and provisions not otherwise specified in this Section 2.05(b)(iii)(B2.4 that adversely affect the rights or obligations of the Agent)) in , and except as otherwise set forth herein, to the extent not substantially identical to any mandatory repayments or prepayments of principal Class of Term Loans hereunder,
existing on the Refinancing Closing Date, shall be consistent with clauses (viii) [reserved]
through (viiivi) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest below and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) otherwise shall be (taken as a whole) no not materially more favorable (as reasonably determined by the Borrower in good faithBorrower) to the Refinancing Term Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt such Class (taken as a whole) being refinanced (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (as of the applicable Refinancing Closing Date) of such Class being refinanced, (2) pricing, fees, rate floors, premiumsoptional prepayment, optional prepayment amortization or redemption termsmaturity and (3) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at subject to the time of incurrence or issuance thereof (in each caseimmediately succeeding proviso, as determined by the Borrower in good faitha Previously Absent Financial Maintenance Covenant); providedprovided that, that no consent shall be required from the terms of Agent or any New Term Commitments shall not include any financial maintenance covenant unless existing Lender to the extent such financial maintenance covenant shall Previously Absent Financial Maintenance Covenant is (x) also apply added for the benefit of the Term Commitments Loans existing on the Refinancing Closing Date or (and y) only applicable after the Maturity Date of any Term Loans made pursuant thereto), and
(xii) notwithstanding Loan existing on the foregoing, Refinancing Closing Date. In any event each Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (Loan and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.:
(i) In lieu at the Borrower’s option, may rank pari passu or junior in right of incurring payment with the Obligations under the then existing Term Loans, may be pari passu or junior in right of security with the Obligations under the then existing Term Loans (and, if junior in right of security, subject to an Appropriate Intercreditor Agreement) or may be unsecured;
(ii) as of the Refinancing Closing Date, shall not mature earlier than the Maturity Date of the Refinanced Debt;
(iii) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the Refinanced Debt on the date of incurrence of such Refinancing Term Loans (except by virtue of amortization or prepayment of the Refinanced Debt prior to the time of such incurrence);
(iv) shall have an applicable margin and, subject to clauses (e)(ii) and (e)(iii) above, amortization determined by the Borrower and the applicable Refinancing Term Lenders;
(v) shall not be subject to any guarantee by any person other than an Obligor and shall not include any borrower other than the Borrower; and
(vi) may, in the case of any Refinancing Term Loans that are pari passu in right of payment and right of security with then existing Term Loans, provide for the Borrower may at any time or from time ability to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured participate on a pari passu pro rata basis, or on a less than pro rata basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured not on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”greater than pro rata basis), in each caseany voluntary prepayments of such Term Loans hereunder, as specified in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)the applicable Refinancing Amendment.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (United Rentals North America Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”)) or Refinancing Notes pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower, in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each Loans. Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of or Refinancing Notes shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before and immediately after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans or Refinancing Notes shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discountsaggregate principal amount of the Refinancing Term Loans or Refinancing Notes shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, fees, optional prepayment costs and redemptions terms and, subject to clauses expenses (iiincluding original issue discount) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will or Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Refinancing Lenders providing Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Initial Term B Loans (except to the extent such covenants and other terms apply solely to any period after the then applicable Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Refinancing Term Commitments Loans or Refinancing Notes may contain any financial maintenance covenants, so long as any such covenant shall not be more restrictive to the Borrower than (or in addition to) those applicable to the applicable Refinanced Debt Term Loans or Revolving Credit Commitment then outstanding (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall covenants are also apply added for the benefit of the Term Commitments (and any Lenders, which shall not require consent of the Lenders holding the Term Loans made pursuant theretoor Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement effective on such Refinancing Effective Date), ;
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans and Refinancing Notes;
(vii) Refinancing Term Loans and Refinancing Notes shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral; and
(xiiviii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described Loans and Refinancing Notes may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class asany mandatory prepayments hereunder, and have identical terms to, as specified in the applicable Class of Term Loans to which they applyRefinancing Amendment.
(fb) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing Section 9.04 to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange foror Refinancing Notes; provided, that any Lender offered or approached to extend, renew, replace, repurchase, retire provide all or refinance, and shall permanently terminate applicable commitments under, a portion of the applicable Refinanced DebtRefinancing Term Loans or Refinancing Notes may elect or decline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan or Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Credit Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Credit Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that (i) immediately before and immediately after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied, (ii) after giving effect to the establishment of any Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Credit Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Credit Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to fees, interest rates and other pricing terms) and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Credit Commitments and taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date in effect at the time of incurrence or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Replacement Revolving Facilities may contain any financial maintenance covenants, so long as any such covenant shall not be tighter than (or in addition to) those applicable to the Term Loans or Revolving Credit Commitment then outstanding (unless such covenants are also added for the benefit of the Lenders holding the Term Loans or Revolving Credit Commitments then outstanding, which shall not require consent of the Lenders holding the Term Loans or Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement upon the applicable Replacement Revolving Facility Effective Date); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantor) in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Credit Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral.
(d) The Borrower may approach any Lender or any other Person that would be a permitted assignee of a Revolving Credit Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Credit Commitments for all purposes of this Agreement; provided that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Credit Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Credit Commitment, such Lender will be deemed to have an Other Revolving Credit Commitment having the terms of such Replacement Revolving Credit Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.20), (i) no Refinancing Term Loan or Replacement Revolving Credit Commitment is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Credit Commitment at any time or from time to time after the Closing Date issueother than those set forth in clauses (a) or (c) above, incur or otherwise obtain as applicable, and (it being understood that no Lender iii) all Refinancing Term Loans, Replacement Revolving Credit Commitments and all obligations in respect thereof shall be required to provide Obligations under this Agreement and the other Loan Documents that rank equally and ratably in right of security with the other Secured Obligations. In connection with any Refinancing Amendment, the Administrative Agent shall have received customary legal opinions or other certificates reasonably requested by the it in connection with any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard transaction. Notwithstanding anything to the control of remedies) (such notescontrary, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness this Section 2.20 shall supersede any provisions in Section 2.15 or Section 9.02 to the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Samples: Credit Agreement (Shutterfly Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(d) (which provisions shall not be applicable to this Section 2.22), the Borrower may, at any time or from time to time after the Closing Date, may by revocable written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all the proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinancerefinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than ten (10) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is ; provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date, each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Maturity Date maturity date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Term Loans plus amounts used to pay fees, prepayment premiums or penalties, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, prepayment penalties and premiums, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as reasonably determined by the Administrative Agent) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the latest maturity date applicable to any Loans or Commitments hereunder or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the Refinancing Term Loans may provide for the ability Borrower shall be in compliance immediately prior to participate and immediately after giving effect (including giving effect on a pro rata forma basis) to such refinancing with the financial covenants set forth in Section 6.10 (without giving effect to any Acquisition Holiday) as of the last day of the fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, greater than if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or less than pro rata basis (b), the most recent financial statements referred to in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B3.04)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,, as applicable;
(vii) [reserved]there shall be no borrower (other than the Borrower) and no guarantors (other than the Loan Parties) in respect of such Refinancing Term Loans, as determined on the Refinancing Effective Date;
(viii) [reserved],any Unrestricted Subsidiary shall be an “unrestricted subsidiary” under the terms of any Refinancing Term Loans, as determined on the Refinancing Effective Date;
(ix) Refinancing Term Loans shall not have a greater principal amount be secured by any asset of the Borrower or any of its Restricted Subsidiaries other than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,Collateral; and
(x) [reserved],Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments (other than as provided otherwise in the case of such prepayments pursuant to Section 2.11(b)) hereunder, as specified in the applicable Refinancing Amendment.
(xib) except as set forth above, The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to Section 9.04 to provide all or a portion of the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith)Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement; provided further that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to a Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(d) (which provisions shall not be applicable to this Section 2.22), the Borrower may by revocable written notice to the Administrative Agent establish one or more additional credit facilities hereunder (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Commitments shall become effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its sole discretion); provided that:
(i) immediately before giving effect to the establishment of such Replacement Revolving Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) after giving effect to the establishment of any Replacement Revolving Commitments and any concurrent reduction in the aggregate amount of any other Revolving Commitments, the aggregate amount of Revolving Commitments shall not exceed the aggregate amount of the Revolving Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, prepayment premiums and penalties, costs and expenses (including original issue discount) and accrued interest associated therewith;
(iii) no Replacement Revolving Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the maturity date for the Revolving Commitments being replaced;
(iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, prepayment penalties and premiums, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Commitments and (y) the amount of any letter of credit sublimit or swingline sublimit under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Commitments, the Administrative Agent, the replacement issuing bank and the replacement swingline lender, if any, under such Replacement Revolving Commitments) taken as a whole shall (as reasonably determined by the Administrative Agent) be substantially similar to, or no more restrictive to the Borrower and the Restricted Subsidiaries than, those, taken as a whole, applicable to the Revolving Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the latest maturity date applicable to any Loans or Commitments hereunder or are otherwise reasonably acceptable to the Administrative Agent);
(v) the Borrower shall be in compliance immediately prior to and immediately after giving effect (including giving effect on a pro forma basis) to such refinancing with the financial covenants set forth in Section 6.10 (without giving effect to any Acquisition Holiday) as of the last day of the fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04), as applicable;
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Subsidiary Guarantors) in respect of such Replacement Revolving Facility, as determined on the Replacement Revolving Facility Effective Date;
(vii) any Unrestricted Subsidiary shall be an “unrestricted subsidiary” under the terms of any Replacement Revolving Facility, as determined on the Replacement Revolving Facility Effective Date;
(viii) Replacement Revolving Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its Restricted Subsidiaries other than the Collateral; and
(ix) Replacement Revolving Commitments and Replacement Revolving Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory commitment reductions or prepayments (other than as provided otherwise in the case of such prepayments pursuant to Section 2.11(b)) hereunder, as specified in the applicable Refinancing Amendment. In lieu of incurring any Refinancing Term Loansaddition, the Borrower may establish Replacement Revolving Commitments to refinance and/or replace all or any portion of a Term Loan hereunder, so long as the aggregate amount of such Replacement Revolving Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, prepayment premiums and penalties, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement Revolving Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other Person that would be a permitted assignee under Section 9.04) so long as (i) immediately before giving effect to the establishment such Replacement Revolving Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 4.02 shall be satisfied, (ii) the remaining life to termination of such Replacement Revolving Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Commitments shall be no earlier than the maturity date of the refinanced Term Loans, (iv) the Borrower shall be in compliance immediately prior to and immediately after giving effect (including giving effect on a pro forma basis) to such replacement with the financial covenants set forth in Section 6.10 (without giving effect to any Acquisition Holiday) as of the last day of the fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04), as applicable, (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Loan Parties) in respect of such Replacement Revolving Facility, (vi) any Unrestricted Subsidiary shall be an “unrestricted subsidiary” under the terms of any Replacement Revolving Facility, (vii) no Replacement Revolving Facility shall be secured by any asset of the Borrower and its Restricted Subsidiaries other than the Collateral and (viii) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, prepayment penalties and premiums, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Commitments and (y) the amount of any letter of credit sublimit or swingline sublimit under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Commitments, the Administrative Agent, the replacement issuing bank and the replacement swingline lender, if any, under such Replacement Revolving Commitments) taken as a whole shall (as reasonably determined by the Administrative Agent) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries than, those, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the latest maturity date applicable to any Loans or Commitments hereunder or are otherwise reasonably acceptable to the Administrative Agent).
(d) The Borrower may approach any Lender or any other Person that would be a permitted assignee of a Revolving Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Commitment. Any Replacement Revolving Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Commitments for all purposes of this Agreement; provided that any Replacement Revolving Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other necessary documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Commitment, such Lender will be deemed to have an Other Revolving Commitment having the terms of such Replacement Revolving Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.22), (i) no Refinancing Term Loan or Replacement Revolving Commitment is required to be in any minimum amount or any minimum increment, (iii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Commitment at any time or from time to time after other than those set forth in clauses (a) or (c) above, as applicable, and (iv) unless otherwise agreed to by the Closing Date issueapplicable Lender with respect to such Loans or Commitments, incur or otherwise obtain (it being understood that no Lender all Refinancing Term Loans, Replacement Revolving Commitments and all obligations in respect thereof shall be required to provide any such Indebtedness) (A) secured Indebtedness Obligations under a separate agreement this Agreement and the other Loan Documents that rank equally and ratably in the form right of one or more series of senior secured notes that are secured on a pari passu basis security with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Obligations.
Appears in 1 contract
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Restatement Effective Date, by notice to the Administrative Agent (a “Borrower may obtain from any Lender or any Additional Refinancing Loan Request”), request (i) Lender Credit Agreement Refinancing Indebtedness in respect of all or any portion of the establishment of one or more new Classes of Term Loans then outstanding under this Agreement (which for this purpose will be deemed to include any such new Class, “New then outstanding Refinancing Term Commitments”Loans), in the form of Refinancing Term Loans, in each case pursuant to a Refinancing Amendment; provided that such Credit Agreement Refinancing Indebtedness (i) or will rank pari passu in right of payment and of security with the other Term Loans and Term Commitments hereunder, (ii) increases have such pricing and optional prepayment terms as may be agreed by the Borrower and the Lenders thereof, (iii) except as may be agreed to one by the Lenders and Additional Refinancing Lenders providing such Credit Agreement Refinancing Indebtedness in the respective Refinancing Amendment (but solely as it relates to such Lenders waiving their pro rata share of any applicable prepayment or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”repayment), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for shall be prepaid and repaid on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except as provided in Section 2.05(b)(v) above) with all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction voluntary prepayments and mandatory prepayments of the terms and conditions in this Section 2.15other Classes of Term Loans, (i) each Refinancing Term Lender of such Class shall make a Term Loan to it being understood that the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect amortization schedule applicable to the Refinancing Term Commitment of such Class Loans shall be determined by the Borrower and the Lenders providing the Refinancing Term Loans of such Class made pursuant thereto.
and (civ) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender except as provided in clauses (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(hii) and (iiii) (above or as applicable) provided below, shall be methave covenants, assuming that events of default, guarantees, collateral and other terms which are substantially identical to, or less favorable to the making or provision Lenders of such Refinancing Term Loans is an assignment of such Refinancing Term Loans than, the Refinanced Debt; provided further that the terms and conditions applicable to such Person (each Credit Agreement Refinancing Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof and applicable only during periods after the Latest Maturity Date that is in effect on the date such existing Lender Credit Agreement Refinancing Indebtedness is issued, incurred or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) obtained. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a), (b) and (bc) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) and, to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (Ai) (I) customary legal opinions, board resolutions and officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to such legal opinions opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, Agent and (Cii) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any the Refinancing Term Commitment is Loans are provided with the benefit of the applicable Loan Documents, and
(iv) the . Each tranche of Credit Agreement Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans Indebtedness incurred under this Section 2.15 shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the in an aggregate principal amount that is not less than $50,000,000. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions Refinancing Amendment. Each of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation parties hereto hereby agrees that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, and the other Loan Documents, executed by the Borrower, each existing Lender agreeing Documents may be amended pursuant to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The a Refinancing Amendment mayAmendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Term Loans and Term Commitments subject thereto as Refinancing Term Loans and/or Refinancing Term Commitments), (ii) provide certain class protection to the Lenders and Additional Refinancing Lenders providing such Credit Agreement Refinancing Indebtedness with respect to voluntary prepayments and mandatory prepayments, (iii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of the third paragraph of Section 10.01 (without the consent of the Required Lenders called for therein) and (iv) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinanceSection, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, Required Lenders hereby expressly authorize the Borrower may at any time or from time Administrative Agent to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide enter into any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Amendment.
Appears in 1 contract
Samples: Credit Agreement (Avaya Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”)) or Refinancing Notes under a separate agreement, in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, refinance outstanding Term Loans in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent part and shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans be made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan procedures reasonably acceptable to the Borrower and the Administrative Agent, all Net Proceeds of which are used to refinance in whole or in part any Class of Term Loans. Each such notice shall specify the date (each, a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender or Refinancing Notes shall be made or issued, which shall be a date not earlier than five (but no existing Lender shall have any obligation 5) Business Days after the date on which such notice is delivered to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before and immediately after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans or Refinancing Notes shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discountsaggregate principal amount of the Refinancing Term Loans or Refinancing Notes shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, fees, optional prepayment costs and redemptions terms and, subject to clauses expenses (iiincluding original issue discount) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will or Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) not be materially less favorable to the Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the refinanced Term Loans (except to the extent such covenants and other terms (1) are also added for the benefit of the Lenders holding Term Loans outstanding on the Refinancing Effective Date, which shall not require consent of the Lenders providing holding the Term Loans or Revolving Credit Commitments outstanding on the Refinancing Effective Date and which the Administrative Agent shall add to this Agreement effective on such Refinancing Effective Date, (2) apply solely to any period after the then applicable Latest Maturity Date of the Term Loans outstanding on the Refinancing Effective Date, or (3) are otherwise reasonably acceptable to the Administrative Agent); provided that any such Refinancing Term Commitments Loans or Refinancing Notes may contain any financial maintenance covenants, so long as any such covenant shall not be more restrictive to the Borrower than (or in addition to) those applicable to the applicable Refinanced Debt Term Loans or Revolving Credit Commitment outstanding on the Refinancing Effective Date (except unless such covenants are also added for (1) covenants the benefit of the Lenders holding the Term Loans or other provisions applicable only to periods after Revolving Credit Commitments outstanding on the Latest Maturity Refinancing Effective Date, which shall not require consent of the Lenders holding the Term Loans or Revolving Credit Commitments outstanding on the Refinancing Effective Date and which the Administrative Agent shall add to this Agreement effective on such Refinancing Effective Date);
(2vi) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms there shall be no borrower and conditions reflect market terms and conditions for no guarantors other than the Loan Parties in respect of such Refinancing Term Commitments at Loans and Refinancing Notes;
(vii) Refinancing Term Loans and Refinancing Notes shall not be secured by any asset of the time Borrower and its Subsidiaries other than the Collateral; and
(viii) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments hereunder, as specified in the applicable Refinancing Amendment.
(b) The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to Section 9.04 to provide all or a portion of incurrence the Refinancing Term Loans; provided, that any Lender offered or issuance thereof approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated an additional Class of Term Loans for all purposes of this Agreement; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Credit Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), or Refinancing Notes under a separate agreement, in each case, which replace in whole or in part any Class of Revolving Credit Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Credit Commitments or Refinancing Notes shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that (i) immediately before and immediately after giving effect to the establishment of such Replacement Revolving Credit Commitments or Refinancing Notes on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied, (ii) after giving effect to the establishment of any Replacement Revolving Credit Commitments or issuance of Refinancing Notes and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including upfront fees) and accrued interest associated therewith; (iii) no Replacement Revolving Credit Commitments or Refinancing Notes shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Credit Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility or Refinancing Notes, as applicable (other than provisions relating to fees, interest rates and other pricing terms), and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Credit Commitments or Refinancing Notes, as applicable, and taken as a whole shall (as determined by the Borrower in good faith); provided) not be materially less favorable to the Borrower and its Subsidiaries than, that those, taken as a whole, applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall (1) are also apply added for the benefit of the Term Lenders holding the other Revolving Credit Commitments (and any then outstanding, which shall not require consent of the Lenders holding Term Loans made pursuant theretoor Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement upon the applicable Replacement Revolving Facility Effective Date, (2) apply solely to any period after the Latest Maturity Date in effect at the time of incurrence or (3) are otherwise reasonably acceptable to the Administrative Agent); provided that any such Replacement Revolving Facilities or Refinancing Notes may contain any financial maintenance covenants, and
so long as any such covenant shall not be more restrictive to the Borrower than (xiior in addition to) notwithstanding those applicable to the foregoing, other Revolving Credit Commitments outstanding on the Refinancing Term Commitments Effective Date (unless such covenants are also added for the benefit of the kind described in Section 2.15(a)(A)(ii) (and Lenders holding the other Revolving Credit Commitments outstanding on the Refinancing Loans made pursuant thereto) Effective Date, which shall form part not require consent of the same Class as, Lenders holding Term Loans or Revolving Credit Commitments then outstanding and have identical terms to, which the Administrative Agent shall add to this Agreement upon the applicable Class Replacement Revolving Facility Effective Date); (v) there shall be no borrower and no guarantors other than the Loan Parties in respect of Term Loans to which they applysuch Replacement Revolving Facility or Refinancing Notes; and (vi) Replacement Revolving Credit Commitments and extensions of credit thereunder or Refinancing Notes shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral.
(fd) The Borrower may approach any Lender or any other Person that would be a permitted assignee of a Revolving Credit Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in respect its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Credit Commitments for all purposes of this Agreement; provided that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Credit Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable) shall become Commitments under execute and deliver to the Administrative Agent an amendment to this Agreement pursuant to an amendment (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Agreement and, as appropriate, and the other Loan Documents, executed by (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the Borrower, each existing terms of such Refinancing Term Loan and (B) if a Lender agreeing to provide such is providing a Replacement Revolving Credit Commitment, if anysuch Lender will be deemed to have an Other Revolving Credit Commitment having the terms of such Replacement Revolving Credit Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.20), each Additional Lender agreeing (i) no Refinancing Term Loan or Replacement Revolving Credit Commitment is required to provide such Commitmentbe in any minimum amount or any minimum increment, if any(ii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Credit Commitment at any time or from time to time other than those set forth in clauses (a) or (c) above, as applicable, and (iii) all Refinancing Term Loans, Replacement Revolving Credit Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the Administrative Agentother Loan Documents that rank equally and ratably in right of security with the other Secured Obligations. The Each Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the BorrowerAdministrative Agent, to effect the provisions of this Section 2.152.20. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Notwithstanding anything to the control of remedies) (such notescontrary, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness this Section 2.20 shall supersede any provisions in Section 2.15 or Section 9.02 to the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Samples: Credit Agreement (Maxlinear Inc)
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Borrower may obtain, from any Lender or any Additional Lender, Permitted Credit Agreement Refinancing Loan Request”), request (i) Debt in respect of all or any portion of the establishment of one or more new Classes of Term Loans then outstanding under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans which for all purposes of this Agreementclause will be deemed to include any then outstanding Other Loans) in the form of Other Loans or Other Commitments pursuant to a Refinancing Amendment; it being understood that Amendment No. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (4 constitutes a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder Amendment” with respect to the Refinancing establishment of the Term Commitment of such Class B-4 Commitments as “Other Commitments” and the Refinancing Term B-4 Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lenderas “Other Loans”; provided that the Administrative Agent such Permitted Credit Agreement Refinancing Debt: (i) shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make rank senior in right of payment or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject security to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) Loans and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
Commitments hereunder; (ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 will have such pricing, premiums, optional prepayment terms and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents financial covenants as may be reasonably requested agreed by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term CommitmentsLenders thereof; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall will have a maturity date that is not prior to the maturity date of, and will have a Weighted Average Life to Maturity of no less than that is not shorter than, the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
Loans being Refinanced; (iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses clause (ii) above, will have terms and conditions that are either substantially identical to, or, taken as a whole, less favorable to the Lenders or Additional Lenders providing such Permitted Credit Agreement Refinancing Debt than, the Refinanced Debt; and (iiiv) abovethe proceeds of such Permitted Credit Agreement Refinancing Debt shall be applied, substantially concurrently with the amortization schedule incurrence thereof, to the prepayment of outstanding Loans being so Refinanced; provided, further, that the terms and conditions applicable to such Permitted Credit Agreement Refinancing Debt may provide for any Refinancing Term Loans shall be determined by financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars thereof and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to during periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless that is in effect on the date such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Permitted Credit Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debtis issued, “Refinancing Equivalent Debt”), in each case, in exchange for, incurred or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).obtained. -89-
Appears in 1 contract
Refinancing Amendments. (a) The Borrower mayNotwithstanding anything to the contrary in this Agreement, at any time or from time including Section 2.18(c) (which provisions shall not be applicable to time after this Section 2.23), the Closing Date, Borrowers may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrowers propose that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.01 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and the Lenders thereunder; provided that a currency expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than Canadian Dollars provisions relating to original issue discount, upfront fees, interest rates and U.S. Dollars any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the consent of provisions set forth in Section 2.21(b)(v)) and optional prepayment or mandatory prepayment or redemption terms, which shall be as agreed between the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower Borrowers and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Lux Borrower in good faith) be substantially similar to, or not materially less favorable to the Parent and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the with respect to Refinancing Term Loans may provide for secured by Liens on the ability Collateral that rank junior in right of security to participate on the Initial2017 Term B Loans, such Liens will be subject to a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,Permitted Junior Intercreditor Agreement;
(vii) [reserved]there shall be no direct or contingent obligor in respect of such Refinancing Term Loans except (x) the borrowers shall be comprised solely of any or all of the Lux Borrower (with, the Co-Borrower and the Additional Borrowers (on a joint and several co-borrowerbasis as provided in this Agreement) and (y) the guarantors shall constitute the Guarantors hereunder;
(viii) [reserved],Refinancing Term Loans shall not be secured by any asset of the Parent and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.11(b)(2)) hereunder, as specified in the applicable Refinancing Amendment.
(b) The Borrowers may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower may at any time or from time Borrowers.
(c) Notwithstanding anything to time after the Closing Date issuecontrary in this Agreement, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtednessincluding Section 2.18(c) (A) secured Indebtedness under a separate agreement in which provisions shall not be applicable to this Section 2.23), the form of Borrowers may by written notice to the Administrative Agent establish one or more series of senior secured notes that are secured on a pari passu basis with additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the Obligations (but without regard to the control of remedies) (such notesrevolving loans thereunder, “Permitted Pari Passu Secured Refinancing DebtReplacement Revolving Loans”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, which replace in whole or in partpart any Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrowers propose that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its sole discretion); provided that: (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.01 shall be satisfied; (ii) after giving effect to the establishment of any existing Class Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date; (iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or Classes require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date in effect at the time of incurrence for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrowers and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrowers, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall (as determined by the Lux Borrower in good faith) be substantially similar to, or not materially more favorable to the Lenders providing such Replacement Revolving Facility Commitments than, those, taken as a whole, applicable to the Initial Revolving Loans (except to the extent such Loanscovenants and other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence or are otherwise reasonably acceptable to the Administrative Agent); (v) there shall be no direct or contingent obligor in respect of such Replacement Revolving Facility except (x) the borrowers shall be comprised solely of any or all of the Lux Borrower (with, “Refinanced Loans”)the Co-Borrower and the Additional Borrowers (on a joint and several co-borrowerbasis as provided in this Agreement) and (y) the guarantors shall constitute the Guarantors hereunder; and (vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of the Parent and its subsidiaries other than the Collateral, and any such Replacement Revolving Facility Commitments shall be secured on the same basis as the Revolving Facility Commitments being replaced. Solely to the extent that an Issuing Bank or Swingline Lender is not a replacement issuing bank or replacement swingline lender, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank or Swingline Lender shall not be required to issue any letters of credit or swingline loan under such Replacement Revolving Facility and, to the extent it is necessary for such Issuing Bank or Swingline Lender to withdraw as an Issuing Bank or Swingline Lender, as the case may be, at the time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank or Swingline Lender, as the case may be, in its sole discretion. The Borrowers agree to reimburse each Issuing Bank or Swingline Lender, as the case may be, in full upon demand, for any reasonable and documented out-of-pocket cost or expense attributable to such withdrawal.
Appears in 1 contract
Samples: Credit Agreement (Mallinckrodt PLC)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), all cash proceeds from the incurrence, issuance or sale by the Borrower of which Refinancing Term Loans, net of all taxes paid or reasonably estimated to be payable, directly or indirectly, as a result thereof and fees (including investment banking fees, underwriting fees and discounts), commissions, costs and other expenses, in each casecase incurred in connection with such incurrence, established in exchange forissuance or sale, or are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any Loans (or one or more Class(es) of Loans). Each such notice shall specify the existing Class or Classes applicable Class(es) of Loans or Commitments being refinanced and the date (with respect to a particular Refinancing Term Commitment or Refinancing Term Loaneach, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent in its sole discretion); provided that:
(A) the representations and warranties of Borrower set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects (I) customary officer’s certificates except in the case of any such representations and board resolutions and (II) customary opinions of counsel warranty that expressly relates to the Loan Partiesan earlier given date or period, in each casewhich case such representation and warranty shall be true and correct in all material respects as of the respective earlier date or respective period, consistent with those delivered on as the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentcase may be), ; and
(B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, no Default shall have occurred and be continuing; (Cii) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit final maturity date of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature no earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
refinanced Loans; (iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),
refinanced Loans; (iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Loans plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),
including original issue discount) and accrued interest associated therewith; (v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment, mandatory prepayment, amortization or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (when taken as a whole) no more favorable (whole and as reasonably determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower than, the terms (taken as a whole) applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) to the extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment then in effect or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at are otherwise reasonably acceptable to the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faithAdministrative Agent); provided, provided that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant that are unsecured or rank junior in right of security to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, Initial Term Loans and the Administrative Agent. The Refinancing Amendment may, without Term B-1 Loans shall not have scheduled amortization commencing prior to the consent of any Latest Maturity Date other Lenders, effect such amendments than at a nominal rate; (vi) with respect to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans secured by Liens on the Collateral that rank junior in exchange for, or right of security to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Initial Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing and Term B-1 Loans, the Borrower may at any time or from time such Liens will be subject to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).Intercreditor Agreement;
Appears in 1 contract
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or ) to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each Loans. Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the Borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Maturity Date maturity date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms (optional prepayment or mandatory prepayment or redemption terms shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Subsidiary Guarantors) in respect of such Refinancing Term Loans;
(vii) Refinancing Term Loans shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral;
(viii) Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or on a less than a pro rata basis (but not on a greater than a pro rata basis except basis) in any mandatory prepayments (other than as provided otherwise in the case of a prepayment under such prepayments pursuant to Section 2.05(b)(iii)(B2.08(c)) hereunder, as specified in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],the applicable Refinancing Amendment;
(ix) Refinancing Term Loans shall not at any time have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as any financial maintenance covenants of a different type than the financial covenants set forth abovein Section 6.10, or any financial maintenance covenants that are more restrictive than the material terms and conditions of any such Refinancing Term Commitments financial covenants set forth in Section 6.10 or (and the Loans in respect thereofy) shall be (negative covenants and/or default provisions that, taken as a whole) no , are materially more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments restrictive than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, Revolving Facility as determined in good faith by the Borrower unless, in good faith); providedeach case of clauses (x) and (y) such terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply incorporated into this Agreement for the benefit of the Term Commitments all then existing Lenders (and without further amendment requirements) for so long as any such Refinancing Term Loans made pursuant thereto), are outstanding or (II) become applicable only after the Revolving Facility shall have matured or been terminated and
(xiix) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceedsNet Proceeds, if any, of such Refinancing Term Loans shall be applied in accordance with Section 2.08(c).
(b) The Borrower may approach any Lender or any other person that would be a permitted assignee pursuant to Section 9.05 to provide all or a portion of the Refinancing Term Loans; provided, that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may at any time or from time by written notice to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of Administrative Agent establish one or more series of senior secured notes that are secured on a pari passu basis with additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the Obligations (but without regard to the control of remedies) (such notesrevolving loans thereunder, “Permitted Pari Passu Secured Refinancing DebtReplacement Revolving Loans”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, which replace in whole or in partpart any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, any existing Class a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or Classes of Loans (such Loansshorter period agreed to by the Administrative Agent in its reasonable discretion); provided, “Refinanced Loans”).that:
Appears in 1 contract
Samples: Incremental Assumption Agreement (Match Group, Inc.)
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Loan Request”), request (i) Indebtedness in respect of all or any portion of the establishment of one or more new Classes of Term Loans then outstanding under this Agreement (which for purposes of this Section 2.19 will be deemed to include any such new Classthen outstanding Other Term Loans, “New Refinancing Additional Term Commitments”) Loans or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Extended Term Commitments, “Refinancing Term Commitments”Loans), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more form of the existing Class or Classes of Other Term Loans or Other Term Commitments (with respect in each case pursuant to a particular Refinancing Amendment; provided that such Credit Agreement Refinancing Indebtedness (a) will rank pari passu in right of payment and of security with the other Term Commitment or Refinancing Loans and Term LoanCommitments hereunder, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing will have such pricing, premiums and optional prepayment or redemption terms as may be agreed by the Borrower and the Lenders thereof, (c) will have a maturity date not earlier than, and will have a weighted average life to maturity not shorter than, the Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the being refinanced and (d) will have terms and conditions (other than as set forth in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
foregoing clause (c) Each Refinancing Loan Request from and pricing, premiums and optional prepayment or redemption terms) that are substantially identical to, or (taken as a whole as determined by the Borrower pursuant in good faith) are no more favorable to this Section 2.15 shall set forth the requested amount and proposed terms lenders providing such Credit Agreement Refinancing Indebtedness than those applicable to the Loans being refinanced (except for covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of incurrence of such Indebtedness (immediately prior to the effectiveness of the relevant Refinancing Term Loans and identify Amendment); provided further that the Refinanced Debt with respect theretoBorrower may incur such Credit Agreement Refinancing Indebtedness to effectuate a Repricing Transaction. Refinancing Any Other Term Loans may be made by any existing Lender participate on a pro rata basis or on a less than pro rata basis (but no existing Lender shall have not on a greater than pro rata basis) in any obligation to make voluntary or mandatory prepayments hereunder, as specified in the applicable Refinancing Amendment. For the avoidance of doubt, neither the Borrower nor its Affiliates may provide any portion of any Refinancing Other Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) Loans. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) and, to the extent reasonably requested by the Administrative Agent, the (i) receipt by the Administrative Agent (A) (I) customary officer’s of legal opinions, resolutions, lien searches and officers’ certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion and otherwise reasonably satisfactory to the Administrative Agent), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, Agent and (Cii) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing the Other Term Commitment is Loans are provided with the benefit of the applicable Loan Documents, and
(iv) the ). Each Credit Agreement Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans Indebtedness incurred under this Section 2.19 shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the in an aggregate principal amount that is not less than $10,000,000. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions Refinancing Amendment. Each of the Refinancing Term Commitments (and parties hereto hereby agrees that, upon the Loans in respect of the foregoing), effectiveness of any Class Refinancing Amendment, this Agreement shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (deemed amended to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive but only to the Borrower extent) necessary to reflect the existence and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and amendments necessary to treat the Loans in respect thereof) shall be (taken and Commitments subject thereto as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Other Term Loans made pursuant theretoand/or Other Term Commitments), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.152.19. The Borrower will use the proceeds, if any, of the Refinancing Term Loans This Section 2.19 shall supersede any provisions in exchange for, Section 2.12 or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard 10.01 to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Refinancing Amendments. (a) The Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of one or more new Classes of Term Loans under this Agreement (any such new ClassIn addition, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”notwithstanding Sections 11.05(a), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing and (c), this Agreement may be amended with the written consent of Administrative Agent, Borrower and the Lenders (who must be Eligible Assignees) providing the Replacement Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicabledefined below) shall be metand/or the Replacement Revolving Commitments (as defined below), assuming that the making or provision of as applicable (such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loanamendment, a “Refinancing Term Lender” and, collectively, “Refinancing LendersAmendment”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred permit on a pro rata basis (based on as among the principal amount Lenders with respect to any Series of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, thatbeing refinanced:
(iA) such Refinancing Term Commitments shall (x) rank pari passu or junior in right the refinancing of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis outstanding Term Loans of any given Series (“Refinanced Term Loans”) with any of the foregoingreplacement term loans (“Replacement Term Loans”) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,hereunder; provided that
(ii1) Refinancing the aggregate principal amount (exclusive of premiums and other costs) of such Replacement Term Loans shall not mature earlier than exceed the aggregate principal amount of such Refinanced Term Loans,
(2) substantially concurrently with the incurrence of such Replacement Term Loans, 100% of the proceeds thereof (net of customary fees, commissions, costs and other expenses incurred in connection with such Replacement Term Loan) shall be applied to repay the Refinanced Term Loans (including accrued interest, fees and premiums (if any) payable in connection therewith),
(3) such Replacement Term Loans will rank pari passu in right of payment and security with the other Loans and Commitments hereunder,
(4) the Replacement Term Loan Maturity Date of such Replacement Term Loans shall not be prior to the applicable Term Loan Maturity Date of such Refinanced Debt as then in effectTerm Loans,
(iii5) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of no less such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as then in effect for a result of prepayment of the applicable Refinanced Debt (prior to any extension theretoTerm Loans),
(iv6) such Replacement Term Loans are not at any time guaranteed by any Person other than the Guarantors or secured by any asset that is not Collateral and
(7) all other terms applicable to such Replacement Term Loans (excluding pricing, premiums and optional prepayment or optional redemption provisions) are customary market terms for term loans at the time of the issuance of such Replacement Term Loans and shall not be materially more favorable (as determined in good faith by Borrower) to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing; and/or
(B) the currencyrefinancing of all or a portion of the outstanding Revolving Commitments of a given Series (“Refinanced Revolving Commitments” and each Lender holding Refinanced Revolving Commitments, discountsa “Refinanced Revolving Lender”) with replacement revolving commitments (“Replacement Revolving Commitments” and each Lender providing a Replacement Revolving Commitment, premiumsa “Replacement Revolving Lender”) hereunder; provided that
(1) the aggregate principal amount (exclusive of premiums and other costs) of such Replacement Revolving Commitments shall not exceed the aggregate principal amount of such Refinanced Revolving Commitments,
(2) substantially concurrently with the effectiveness of such Replacement Revolving Commitments, feesall or an equivalent portion of the Refinanced Revolving Commitments in effect immediately prior to such effectiveness shall be terminated, optional prepayment and redemptions terms all or an equivalent portion of the Revolving Loans then outstanding, together with interest thereon and all other amounts accrued for the benefit of the Lenders providing such Revolving Loans, shall be repaid or paid,
(3) such Replacement Revolving Commitments will rank pari passu in right of payment and security with the other Loans and Commitments hereunder,
(4) the Replacement Revolving Commitment Termination Date of such Replacement Revolving Commitments shall not be prior to the Revolving Commitment Termination Date of such Refinanced Revolving Commitments,
(5) such Replacement Revolving Commitments are not at any time guaranteed by any Person other than the Guarantors or is secured by any asset that is not Collateral and
(6) except as to interest rates, fees and final maturity date (which, subject to clauses (ii) and (iii) aboveSection 11.05(d)(i)(B)(4), the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and set forth in the Lenders thereunder; provided that a currency other than Canadian Dollars relevant Refinancing Amendment), such Replacement Revolving Commitments, and U.S. Dollars the related outstandings, shall be subject on the same terms and pursuant to documentation applicable to the consent of Revolving Commitments then outstanding (except to the Administrative Agent (not extent necessary to be unreasonably withheld),
(v) the interest rate (including margin provide for covenants and floors) other terms applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods period after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment in effect immediately prior to such refinancing or redemption terms) unless if such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply are added for the benefit of the Term Commitments (and any Term Loans made pursuant theretoLenders), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).; provided that
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Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.08(c), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not less than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the Borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Maturity Date maturity date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent (not refinanced Term Loans plus amounts used to be unreasonably withheld),pay fees, expenses, commissions, underwriting discounts and premiums and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms (optional prepayment or mandatory prepayment or redemption terms shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans;
(vii) Refinancing Term Loans shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral;
(viii) Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or on a less than a pro rata basis (but not on a greater than a pro rata basis except basis) in any mandatory prepayments (other than as provided otherwise in the case of a prepayment under such prepayments pursuant to Section 2.05(b)(iii)(B2.08(c)) hereunder, as specified in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],the applicable Refinancing Amendment; and
(ix) Refinancing Term Loans shall not at any time have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
any financial maintenance covenants of a different type than the Financial Covenants, or any financial maintenance covenants that are more restrictive than the Financial Covenants or (xiy) except as set forth abovenegative covenants and/or default provisions that, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no , are materially more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments restrictive than those applicable to the applicable Refinanced Debt Revolving Facility as determined in good faith by the Borrower unless, in each of clauses (except for (1x) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2y) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions (I) (if favorable to all then existing Lenders) are, in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements) for so long as any such Refinancing Term Commitments at Loans are outstanding or (II) become applicable only after the time Revolving Facility shall have matured or been terminated.
(b) The Borrower may approach any Lender or any other person that would be a permitted assignee pursuant to Section 9.05 to provide all or a portion of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith)Refinancing Term Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that:
(i) In lieu before and after giving effect to the establishment of incurring such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) after giving effect to the establishment of any Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Commitments, the aggregate amount of Revolving Commitments shall not exceed the aggregate amount of the Revolving Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date;
(iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Termination Date for the Revolving Commitments being replaced;
(iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries than, those, taken as a whole, applicable to the Revolving Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the Revolving Termination Date or are otherwise reasonably acceptable to the Administrative Agent);
(v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and
(vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral. Solely to the extent that an Issuing Bank is not a replacement issuing bank, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank shall not be required to issue any letters of credit under such Replacement Revolving Facility and, to the extent it is necessary for such Issuing Bank to withdraw as an Issuing Bank, as the case may be, at the time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank, as the case may be, in its sole discretion. The Borrower agrees to reimburse each Issuing Bank, as the case may be, in full upon demand, for any reasonable and documented out-of-pocket cost or expense attributable to such withdrawal.
(d) The Borrower may approach any Lender or any other person that would be a permitted assignee of a Revolving Commitment pursuant to Section 9.05 to provide all or a portion of the Replacement Revolving Facility Commitments; provided, that any Lender offered or approached to provide all or a portion of the Replacement Revolving Facility Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Facility Commitment. Any Replacement Revolving Facility Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Commitments for all purposes of this Agreement; provided, that any Replacement Revolving Facility Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Facility Commitments. For purposes of this Agreement and the other Loan Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have a Term Loan having the terms of such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Facility Commitment, such Lender will be deemed to have a Revolving Commitment having the terms of such Replacement Revolving Facility Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.20), (i) the aggregate amount of Refinancing Term Loans and Replacement Revolving Facility Commitments will not be included in the calculation of clause (a) of the definition of Incremental Amount, (ii) no Refinancing Term Loan or Replacement Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) there shall be no condition to any incurrence of any Refinancing Term Loans, the Borrower may Loan or Replacement Revolving Facility Commitment at any time or from time to time after the Closing Date issueother than those set forth in clause (a) or (c) above, incur or otherwise obtain as applicable and (it being understood that no Lender iv) all Refinancing Term Loans, Replacement Revolving Facility Commitments and all obligations in respect thereof shall be required Obligations under this Agreement and the other Loan Documents that rank equally and ratably in right of security with the Term Loans and other Obligations.
(f) Each party hereto hereby agrees that, upon the Refinancing Effective Date of any Refinancing Term Loans or Replacement Revolving Facility Commitments, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Refinancing Term Loans or Replacement Revolving Facility Commitments evidenced thereby as provided for in Section 9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.20 (including, without limitation, to provide for the establishment of Incremental Term Loans) and any such Indebtednesscollateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing between the Administrative Agent and the Borrower and furnished to the other parties hereto.
(g) No term loan established and outstanding under this Agreement pursuant to (Ai) secured Indebtedness under any of Sections 2.02, 2.19 or 2.20 or (ii) an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders shall at any time have (x) any financial maintenance covenants of a separate agreement in different type than the form of one Financial Covenants, or more series of senior secured notes any financial maintenance covenants that are secured on more restrictive than the Financial Covenants or (y) have negative covenants and/or default provisions that, taken as a pari passu basis with the Obligations (but without regard whole, are materially more restrictive than those applicable to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness Revolving Facility as determined in good faith by the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loansBorrower unless, in each case, that are secured on a pari passu or subordinated basis with the Obligations case of clauses (such notes or loans, “Permitted Junior Secured Refinancing Debt”x) and (Cy) senior unsecured such terms (I) (if favorable to all then existing Lenders) are in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then existing Lenders (without further amendment requirements) for so long as any such term loans are outstanding or subordinated unsecured Indebtedness (II) become applicable only after the Revolving Facility shall have matured or been terminated. This Section 2.20(g) shall not be waived, amended, amended and restated or modified except pursuant to an agreement or agreements in writing entered into by the form Borrower and the Required Revolving Lenders or by the Borrower and the Administrative Agent with the consent of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)the Required Revolving Lenders.
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Refinancing Amendments. (a) The Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Refinancing Term Loan Request”), request (i) the establishment of one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the then-existing Class or Classes of Term Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or CommitmentsTerm Loans, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the LendersLenders holding such proposed Refinanced Debt.
(b) Each Refinancing Term Loan Request from the Borrower pursuant to this Section 2.4 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the proposed Refinanced Debt with respect thereto. Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may made on a Refinancing Closing Date shall be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. Refinancing Term Loans may be made by any existing Lender (but no existing Lender will have an obligation to make any Refinancing Term Commitment, nor will the Borrower have any obligation to approach any existing Lender to provide any Refinancing Term Commitment) or by any Additional 44 [[6024167]]
(c) On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.152.4, (i) each Refinancing Term Lender of such Class shall make a Term Loan Loan, severally, but not jointly or jointly and severally with the other Refinancing Term Lenders, to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(cd) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount The terms, provisions and proposed terms documentation of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion Commitments of any Class shall be as agreed between the Borrower, the applicable Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making Lenders providing such Refinancing Term Loans if such consent would be required under or Refinancing Term Commitments and the Agent (in the case of the Agent, only with respect to terms and provisions not otherwise specified in this Section 10.07(b) for an assignment 2.4 that adversely affect the rights or obligations of the Agent), and except as otherwise set forth herein, to the extent not substantially identical to any Class of Term Loans to such Lender or Additional Lender; providedexisting on the Refinancing Closing Date, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and consistent with clauses (i) through (vi) below and otherwise shall be (taken as a whole) not materially more favorable (as applicablereasonably determined by the Borrower) to the Refinancing Term Lenders than those applicable to such Class (taken as a whole) being refinanced (except for (1) covenants or other provisions applicable only to periods after the Maturity Date (as of the applicable Refinancing Closing Date) of such Class being refinanced, (2) pricing, fees, rate floors, optional prepayment, amortization or maturity and (3) subject to the immediately succeeding proviso, a Previously Absent Financial Maintenance Covenant); provided that, no consent shall be required from the Agent or any existing Lender to the extent such Previously Absent Financial Maintenance Covenant is (x) also added for the benefit of the Term Loans existing on the Refinancing Closing Date or (y) only applicable after the Maturity Date of any Term Loan existing on the Refinancing Closing Date. In any event each Refinancing Term Loan and Refinancing Term Commitment: (i) at the Borrower’s option, may rank pari passu or junior in right of payment with the Obligations under the then existing Term Loans, may be pari passu or junior in right of security with the Obligations under the then existing Term Loans (and, if junior in right of security, subject to an Appropriate Intercreditor Agreement) or may be unsecured; (ii) as of the Refinancing Closing Date, shall not mature earlier than the Maturity Date of the Refinanced Debt; (iii) shall be met, assuming that have a Weighted Average Life to Maturity not shorter than the making or provision remaining Weighted Average Life to Maturity of the Refinanced Debt on the date of incurrence of such Refinancing Term Loans is an assignment (except by virtue of amortization or prepayment of the Refinanced Debt prior to the time of such incurrence); (iv) shall have an applicable margin and, subject to clauses (e)(ii) and (e)(iii) above, amortization determined by the Borrower and the applicable Refinancing Term Lenders; (v) shall not be subject to any guarantee by any person other than an Obligor and shall not include any borrower other than the Borrower; and (vi) may, in the case of any Refinancing Term Loans that are pari passu in right of payment and right of security with then existing Term Loans, provide for the ability to participate on a pro rata basis, or on a less than pro rata basis (but not on a greater than pro rata basis), in any voluntary prepayments of such Person (each such existing Lender or Additional Lender providing such Commitment or LoanTerm Loans hereunder, a “as specified in the applicable Refinancing Term Lender” and, collectively, “Refinancing Lenders”).Amendment. 45 [[6024167]]
(de) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such the Refinancing Amendment:
: (i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$$5,000,000 and shall be in an increment of C$$1,000,000 (provided that such amount may be less than C$$5,000,000 and not in an increment of C$$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in Debt); (ii) after giving effect to such Refinancing Term Commitments, the form conditions of Term Loans),
Sections 10.1(h) and 10.1(i) shall be satisfied; and (iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent principal amount (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendmentsaccreted value, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the such Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on not exceed the principal amount (or accreted value, if applicable) of each Borrowing) so that each Lender under such Class will participate proportionately the Refinanced Debt (plus the amount of unpaid accrued or capitalized interest and premiums thereon (including make-whole premiums, prepayment premiums, tender premiums and amounts required to be paid in each then outstanding Borrowing of Term Loans under such Class in accordance connection with its Pro Rata Sharedefeasance and satisfaction and discharge), underwriting discounts, original issue discount, defeasance costs, fees (including upfront fees), commissions and expenses).
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(iif) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement established pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Refinancing Term Lender agreeing to provide providing such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, Refinancing Term Loans and the Administrative Agent. The Refinancing Amendment may, without the consent of any other LendersObligor, agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.152.4, including, if applicable, amendments as deemed necessary by the Agent in its reasonable judgment to effect (i) any lien subordination and associated rights of the applicable Lenders to the extent any Refinancing Term Loans are to rank junior in right of security and (ii) that any Previously Absent Financial Maintenance Covenant does not benefit any Term Loan hereunder. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, substantially concurrently, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).. ARTICLE
Appears in 1 contract
Samples: Credit and Guaranty Agreement (United Rentals North America Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and the Lenders thereunder; provided that a currency expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than Canadian Dollars provisions relating to original issue discount, upfront fees, interest rates and U.S. Dollars any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the consent of the Administrative Agent (not to provisions set forth in Section 2.21(b)(v)) and optional prepayment or mandatory prepayment or redemption terms, which shall be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) covenants or to the extent such other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date and (2) pricingDate, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the elects to add such more restrictive terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments other Facilities, or are otherwise reasonably acceptable to the Administrative Agent);
(and any vi) with respect to Refinancing Term Loans made pursuant thereto)secured by Liens on the Collateral that rank junior in right of security to the Term B-1 Loans, andsuch Liens will be subject to a Permitted Junior Intercreditor Agreement;
(xiivii) notwithstanding there shall be no borrower (other than the foregoing, Refinancing Term Commitments of Borrower) and no guarantors (other than the kind described in Section 2.15(a)(A)(iiGuarantors) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of such Refinancing Term Loans;
(viii) Refinancing Term Loans shall become Commitments under this Agreement not be secured by any asset of the Borrower and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the case of such prepayments pursuant to an amendment (a “Section 2.11(b)(2)) hereunder, as specified in the applicable Refinancing Amendment”.
(b) The Borrower may approach any Lender or any other person that would be a permitted Assignee pursuant to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing Section 9.04 to provide such Commitmentall or a portion of the Refinancing Term Loans; provided, if any, each Additional that any Lender agreeing offered or approached to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may at by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any time or from time to time Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the Closing date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that: (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date issueplus amounts used to pay fees, incur premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing banks, if any, under such Replacement Revolving Facility) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Facility Commitments so replaced (except to the extent such other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence, or the Borrower elects to add such more restrictive terms for the benefit of the other Facilities, or are otherwise obtain reasonably acceptable to the Administrative Agent); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; (vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral; and (vii) if such Replacement Revolving Facility is secured by Liens on the Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement. In addition, the Borrower may establish Replacement Revolving Facility Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Facility Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement Revolving Facility Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted Assignee hereunder) so long as (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Facility Commitments, (ii) the remaining life to termination of such Replacement Revolving Facility Commitments shall be no Lender shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Facility Commitments shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans, (iv) with respect to Replacement Revolving Loans secured by Liens on Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement, (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility and (vi) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing banks, if any, under such Replacement Revolving Facility) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date, or the Borrower elects to add such more restrictive terms for the benefit of the other Facilities, or are otherwise reasonably acceptable to the Administrative Agent). Solely to the extent that an Issuing Bank is not a replacement issuing bank under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank shall not be required to provide issue any letters of credit under such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Replacement Revolving Facility and, to the control extent it is necessary for such Issuing Bank to withdraw as an Issuing Bank at the time of remedies) (the establishment of such notesReplacement Revolving Facility, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank in the form of one its sole discretion. The Borrower agrees to reimburse each Issuing Bank in full upon demand for any reasonable and documented out-of-pocket cost or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (expense attributable to such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)withdrawal.
Appears in 1 contract
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”)) or Refinancing Notes pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower, in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each Loans. Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of or Refinancing Notes shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; sole discretion); provided, that:
(i) immediately before and immediately after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans or Refinancing Notes shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discountsaggregate principal amount of the Refinancing Term Loans or Refinancing Notes shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, fees, optional prepayment costs and redemptions terms and, subject to clauses expenses (iiincluding original issue discount) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will or Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Refinancing Lenders providing Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Initial Term B Loans (except to the extent such covenants and other terms apply solely to any period after the then applicable Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Refinancing Term Commitments Loans or Refinancing Notes may contain any financial maintenance covenants, so long as any such covenant shall not be more restrictive to the Borrower than (or in addition to) those applicable to the applicable Refinanced Debt Term Loans or Revolving Credit Commitment then outstanding (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall covenants are also apply added for the benefit of the Term Commitments (and any Lenders, which shall not require consent of the Lenders holding the Term Loans made pursuant thereto), or Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement effective on such Refinancing Effective Date);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans and Refinancing Notes;
(vii) Refinancing Term Loans and Refinancing Notes shall not be secured by any assets other than the Collateral; and
(xiiviii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described Loans and Refinancing Notes may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class asany mandatory prepayments hereunder, and have identical terms to, as specified in the applicable Class of Term Loans to which they applyRefinancing Amendment.
(fb) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing Section 9.04 to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange foror Refinancing Notes; provided, that any Lender offered or approached to extend, renew, replace, repurchase, retire provide all or refinance, and shall permanently terminate applicable commitments under, a portion of the applicable Refinanced DebtRefinancing Term Loans or Refinancing Notes may elect or decline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan or Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring Agreement; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may at any time or from time by written notice to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of Administrative Agent establish one or more series of senior secured notes that are secured on a pari passu basis with additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Credit Commitments” and the Obligations (but without regard to the control of remedies) (such notesrevolving loans thereunder, “Permitted Pari Passu Secured Refinancing DebtReplacement Revolving Loans”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, which replace in whole or in partpart any Class of Revolving Credit Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that (i) immediately before and immediately after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied, (ii) after giving effect to the establishment of any existing Class Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Credit Commitments shall have a final maturity date (or Classes of Loans (such Loans, “Refinanced Loans”).require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Credit Commitments being replaced;
Appears in 1 contract
Samples: Credit Agreement (LendingTree, Inc.)
Refinancing Amendments. (a) The Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Refinancing Loan Request”), request (iA) the establishment of one or more new Classes of Term Loans term loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (iiB) increases to one or more existing Classes of term loans under this Agreement (provided that the loans under such new commitments shall be fungible for U.S. federal income tax purposes with the existing Class of Term Loans proposed to be increased on the Refinancing Facility Closing Date for such increase) (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the then existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment Commitments or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may made on a Refinancing Facility Closing Date shall be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no each existing Term Lender shall not have any an obligation to make any a portion of any Refinancing Term LoanLoan on terms permitted in this Section 2.15) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such the Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment Commitments shall be in an aggregate principal amount that is not less than C$5,000,000 $10,000,000 and shall be in an increment of C$$1,000,000 (provided that such amount may be less than C$5,000,000 $10,000,000 and not in an increment of C$$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term LoansDebt),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (conformed as appropriate) 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), ) and (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata ShareClass.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all the Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to Loans made on the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt Closing Date and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan DocumentsGuarantor,
(ii) except with respect to customary bridge loans, Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect(prior to any extension thereto),
(iii) except with respect to customary bridge loans, Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than basis or less than pro rata basis (but not greater than a pro rata basis) in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any tender premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any defeasance costs and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xiviii) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders Term Lender providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date of the applicable Refinanced Debt and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms); provided that except as provided in preceding clauses (i) unless such through (vii) above, the terms and conditions reflect applicable to such Refinancing Term Commitments and Refinancing Term Loans may be materially different from those of the applicable Refinanced Debt to the extent such differences are reflective of market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (thereof, in each case, as determined by the Borrower in good faith)Borrower; provided, that the terms of any New Term Commitments shall not include any no financial maintenance covenant unless applicable to the Borrower may be added to such financial maintenance covenant shall also apply for the benefit of the Refinancing Term Commitments (and any the Loans in respect thereof) pursuant to this proviso without also being included in the Term Loans made pursuant thereto), and
(xii) notwithstanding which may be achieved by an amendment solely among the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (Borrower and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they applyAdministrative Agent).
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will will, on or prior to the date which is five (5) Business Days after the receipt of such proceeds, use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).
Appears in 1 contract
Refinancing Amendments. (a) The Borrower mayNotwithstanding anything to the contrary in this Agreement, at any time or from time including Section 2.19(c) (which provisions shall not be applicable to time after this Section 2.23), the Closing Date, Borrowers may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes additional tranches of Term Loans term loans denominated at the option of the Borrowers under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.12(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrowers propose that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.01 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and the Lenders thereunder; provided that a currency expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than Canadian Dollars provisions relating to original issue discount, upfront fees, interest rates and U.S. Dollars any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the consent of provisions set forth in Section 2.22(b)(v)) and optional prepayment or mandatory prepayment or redemption terms, which shall be as agreed between the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower Borrowers and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Dutch Borrower in good faith) be substantially similar to, or not materially less favorable to the Parent and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the with respect to Refinancing Term Loans may provide for secured by Liens on the ability Collateral that rank junior in right of security to participate on the Initial Term B Loans, such Liens will be subject to a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,Permitted Junior Intercreditor Agreement;
(vii) [reserved]there shall be no direct or contingent obligor in respect of such Refinancing Term Loans except (x) the borrowers shall be comprised solely of the Dutch Borrower (with the Co-Borrower a joint and several co-borrower as provided in this Agreement) and (y) the guarantors shall constitute the Guarantors hereunder;
(viii) [reserved],Refinancing Term Loans shall not be secured by any asset of the Parent and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.12(b)(2) hereunder, as specified in the applicable Refinancing Amendment.
(b) The Borrowers may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower may Borrowers.
(c) The Borrowers and each Lender providing the applicable Refinancing Term Loans shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans. For purposes of this Agreement and the other Loan Documents, if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.23), (i) the aggregate amount of Refinancing Term Loans will not be included in the calculation of the Incremental Amount, (ii) no Refinancing Term Loan is required to be in any minimum amount or any minimum increment, (iii) there shall be no condition to any incurrence of any Refinancing Term Loan at any time or from time to time after the Closing Date issueother than those set forth in clauses (a) or (c) above, incur or otherwise obtain as applicable, and (it being understood that no Lender iv) all Refinancing Term Loans and all obligations in respect thereof shall be required Obligations under this Agreement and the other Loan Documents that rank equally and ratably in right of security with the Initial Term B Loans and other Loan Obligations (other than Other Incremental Term Loans and Refinancing Term Loans that rank junior in right of security with the Initial Term B Loans, and except to provide the extent any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that Refinancing Term Loans are secured by the Collateral on a pari passu junior lien basis in accordance with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”provisions above).
Appears in 1 contract
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(d) (which provisions shall not be applicable to this Section 2.22), the Borrower may, at any time or from time to time after the Closing Date, may by revocable written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all the proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than ten (10) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is ; provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date, each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Maturity Date maturity date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Term Loans plus amounts used to pay fees, prepayment premiums or penalties, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, prepayment penalties and premiums, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as reasonably determined by the Administrative Agent) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the latest maturity date applicable to any Loans or Commitments hereunder or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the Refinancing Term Loans may provide for the ability Borrower shall be in compliance immediately prior to participate and immediately after giving effect (including giving effect on a pro rata forma basis) to such refinancing with the financial covenants set forth in Section 6.10 (without giving effect to any Acquisition Holiday) as of the last day of the fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, greater than if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or less than pro rata basis (b), the most recent financial statements referred to in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B3.04)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,, as applicable;
(vii) [reserved]there shall be no borrower (other than the Borrower) and no guarantors (other than the Loan Parties) in respect of such Refinancing Term Loans, as determined on the Refinancing Effective Date;
(viii) [reserved],any Unrestricted Subsidiary shall be an “unrestricted subsidiary” under the terms of any Refinancing Term Loans, as determined on the Refinancing Effective Date;
(ix) Refinancing Term Loans shall not have a greater principal amount be secured by any asset of the Borrower or any of its Restricted Subsidiaries other than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,Collateral; and
(x) [reserved],Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments (other than as provided otherwise in the case of such prepayments pursuant to Section 2.11(b)) hereunder, as specified in the applicable Refinancing Amendment.
(xib) except as set forth above, The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to Section 9.04 to provide all or a portion of the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith)Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement; provided further that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to a Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(d) (which provisions shall not be applicable to this Section 2.22), the Borrower may by revocable written notice to the Administrative Agent establish one or more additional credit facilities hereunder (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Commitments shall become effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its sole discretion); provided that:
(i) immediately before giving effect to the establishment of such Replacement Revolving Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) after giving effect to the establishment of any Replacement Revolving Commitments and any concurrent reduction in the aggregate amount of any other Revolving Commitments, the aggregate amount of Revolving Commitments shall not exceed the aggregate amount of the Revolving Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, prepayment premiums and penalties, costs and expenses (including original issue discount) and accrued interest associated therewith;
(iii) no Replacement Revolving Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the maturity date for the Revolving Commitments being replaced;
(iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, prepayment penalties and premiums, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Commitments and (y) the amount of any letter of credit sublimit or swingline sublimit under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Commitments, the Administrative Agent, the replacement issuing bank and the replacement swingline lender, if any, under such Replacement Revolving Commitments) taken as a whole shall (as reasonably determined by the Administrative Agent) be substantially similar to, or no more restrictive to the Borrower and the Restricted Subsidiaries than, those, taken as a whole, applicable to the Revolving Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the latest maturity date applicable to any Loans or Commitments hereunder or are otherwise reasonably acceptable to the Administrative Agent);
(v) the Borrower shall be in compliance immediately prior to and immediately after giving effect (including giving effect on a pro forma basis) to such refinancing with the financial covenants set forth in Section 6.10 (without giving effect to any Acquisition Holiday) as of the last day of the fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04), as applicable;
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility, as determined on the Replacement Revolving Facility Effective Date;
(vii) any Unrestricted Subsidiary shall be an “unrestricted subsidiary” under the terms of any Replacement Revolving Facility, as determined on the Replacement Revolving Facility Effective Date;
(viii) Replacement Revolving Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its Restricted Subsidiaries other than the Collateral; and
(ix) Replacement Revolving Commitments and Replacement Revolving Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory commitment reductions or prepayments (other than as provided otherwise in the case of such prepayments pursuant to Section 2.11(b)) hereunder, as specified in the applicable Refinancing Amendment. In lieu of incurring any Refinancing Term Loansaddition, the Borrower may establish Replacement Revolving Commitments to refinance and/or replace all or any portion of a Term Loan hereunder, so long as the aggregate amount of such Replacement Revolving Commitments does not exceed the aggregate amount of Term Loans repaid at any the time or from time of establishment thereof plus amounts used to time after the Closing Date issuepay fees, incur or otherwise obtain prepayment premiums and penalties, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that no Lender such Replacement Revolving Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other Person that would be a permitted assignee under Section 9.04) so long as (i) immediately before giving effect to the establishment such Replacement Revolving Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 4.02 shall be required satisfied, (ii) the remaining life to provide any termination of such IndebtednessReplacement Revolving Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Commitments shall be no earlier than the maturity date of the refinanced Term Loans, (Aiv) secured Indebtedness under a separate agreement the Borrower shall be in the form of one or more series of senior secured notes that are secured compliance immediately prior to and immediately after giving effect (including giving effect on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).pro
Appears in 1 contract
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Borrower may obtain from any Lender or any Additional Refinancing Loan Request”), request (i) Lender Credit Agreement Refinancing Indebtedness in respect of all or any portion of the establishment of one or more new Classes of Term Loans then outstanding under this Agreement (which for this purpose will be deemed to include any such new Class, “New then outstanding Refinancing Term Commitments”Loans), in the form of Refinancing Term Loans, in each case pursuant to a Refinancing Amendment; provided that such Credit Agreement Refinancing Indebtedness (i) or will rank pari passu in right of payment and of security with the other Term Loans and Term Commitments hereunder, (ii) increases will have such pricing and optional prepayment terms as may be agreed by the Borrower and the Lenders thereof, (iii) except as may be agreed to one by the Lenders and Additional Refinancing Lenders providing such Credit Agreement Refinancing Indebtedness in the respective Refinancing Amendment (but solely as it relates to such Lenders waiving their pro rata share of any applicable prepayment or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”repayment), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for shall be prepaid and repaid on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis) with all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction voluntary prepayments and mandatory prepayments of the terms and conditions in this Section 2.15other Classes of Term Loans, (i) each Refinancing Term Lender of such Class shall make a Term Loan to it being understood that the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect amortization schedule applicable to the Refinancing Term Commitment of such Class Loans shall be determined by the Borrower and the Lenders providing the Refinancing Term Loans of such Class made pursuant thereto.
and (civ) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender except as provided in clauses (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(hii) and (iiii) (above or as applicable) provided below, shall be methave covenants, assuming that events of default, guarantees, collateral and other terms which are substantially identical to, or less favorable to the making or provision Lenders of such Refinancing Term Loans is an assignment of such Refinancing Term Loans than, the Refinanced Debt; provided further that the terms and conditions applicable to such Person (each Credit Agreement Refinancing Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof and applicable only during periods after the Latest Maturity Date that is in effect on the date such existing Lender Credit Agreement Refinancing Indebtedness is issued, incurred or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) obtained. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a), 4.02(b) and (b4.02(c) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) and, to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (Ai) (I) customary officer’s certificates and legal opinions, board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, officers’ certificates consistent with those delivered on the Closing Date (other than changes to such legal opinions opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, Agent and (Cii) supplemental or reaffirmation agreements and/or such amendments to the Collateral Security Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any the Refinancing Term Commitment is Loans are provided with the benefit of the applicable Loan Documents, and
(iv) the . Each tranche of Credit Agreement Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans Indebtedness incurred under this Section 2.23 shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the in an aggregate principal amount that is not less than $50,000,000. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions Refinancing Amendment. Each of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation parties hereto hereby agrees that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, and the other Loan Documents, executed by the Borrower, each existing Lender agreeing Documents may be amended pursuant to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The a Refinancing Amendment mayAmendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Term Loans and Term Commitments subject thereto as Refinancing Term Loans and/or Refinancing Term Commitments), (ii) provide certain class protection to the Lenders and Additional Refinancing Lenders providing such Credit Agreement Refinancing Indebtedness with respect to voluntary prepayments and mandatory prepayments, (iii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of the fifth paragraph of Section 9.02(c) (without the consent of the Required Lenders called for therein) and (iv) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinanceSection, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, Required Lenders hereby expressly authorize the Borrower may at any time or from time Administrative Agent to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide enter into any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Amendment.
Appears in 1 contract
Refinancing Amendments. (a) The Borrower mayNotwithstanding anything to the contrary in this Agreement, at any time or from time including Section 2.16(c) (which provisions shall not be applicable to time after this Section 2.21), but subject to the Closing DateLender Participation Rights, the Borrowers may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in partpart any Class of Term Loans pursuant to Section 2.09(b)(2); provided, as selected by that until the BorrowerFirst-Out Term Loans have been repaid in full, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any no Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Refinance any other Class of Refinancing Term Loans for all purposes of this Agreementhereunder. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedEach such notice shall specify the date (each, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrowers propose that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment by the Administrative Agent in its sole discretion (at the Direction of Loans to such Lender or Additional Lenderthe Required Lenders)); provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and further that:
(i) (as applicable) shall be met, assuming that before and after giving effect to the making or provision borrowing of such Refinancing Term Loans is an assignment on the Refinancing Effective Date each of the conditions set forth in Section 4.01 shall be satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans;
(iii) the Weighted Average Life to Maturity of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject no shorter than the then-remaining Weighted Average Life to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each Maturity of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of refinanced Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and;
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the aggregate principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and Loans shall not exceed the Loans in respect outstanding principal amount of the foregoing)refinanced Term Loans plus amounts used to pay fees, of commissions, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any Class other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which in each case shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower Borrowers and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Lux Borrower in good faith) be substantially similar to, or not materially less favorable to the Parent and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the Refinancing Term Loans may provide for incurred shall rank equally and ratably in right of security and payment with the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder being refinanced (including as to waterfall and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except payment priority pursuant to an Intercreditor Agreement) or, at the option of the Lux Borrower, shall rank junior in right of security and/or payment with the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,being refinanced (including as to waterfall and payment priority pursuant to an Intercreditor Agreement) (provided, that if such Refinancing Term Loans rank junior in right of security and/or payment with the Second-Out Term Loans, such Refinancing Term Loans shall be subject to a Permitted Junior Intercreditor Agreement);
(vii) [reserved]there shall be no direct or contingent obligor in respect of such Refinancing Term Loans except (x) the borrowers shall be comprised solely of any or all of the Lux Borrower and the Co-Borrower (on a joint and several basis as provided in this Agreement) and (y) the guarantors shall constitute the Guarantors hereunder;
(viii) [reserved],Refinancing Term Loans shall not be secured by any asset of the Parent and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any voluntary or mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.09(b)(2) and subject to clause (vi) of this Section 2.21(a)) hereunder, as specified in the applicable Refinancing Amendment.
(b) The Borrowers may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower may Borrowers.
(c) [Reserved.]
(d) [Reserved.]
(e) The Borrowers and each Lender providing the applicable Refinancing Term Loans shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans. For purposes of this Agreement and the other Loan Documents, if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) [reserved,] (ii) no Refinancing Term Loan is required to be in any minimum amount or any minimum increment, (iii) there shall be no condition to any incurrence of any Refinancing Term Loan at any time or from time to time after the Closing Date issueother than those set forth in clause (a), incur or otherwise obtain and (it being understood that no Lender iv) all Refinancing Term Loans and all obligations in respect thereof shall be required Obligations under this Agreement and the other Loan Documents that rank equally and ratably in right of security with the Class of Term Loans being refinanced (and, if in respect of the Second-Out Term Loans, all other obligations secured by Other First Liens) (except to provide the extent any such IndebtednessRefinancing Term Loans are secured by the Collateral on a junior lien basis in accordance with the provisions above) and equally in right of payment with all other Obligations of the Class being refinanced (including as to waterfall and payment priority pursuant to an Intercreditor Agreement) (A) secured Indebtedness under a separate agreement except to the extent any such Refinancing Term Loans rank junior in the form right of one or more series of senior secured notes that are secured on a pari passu basis payment in accordance with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”provisions above).
Appears in 1 contract
Samples: Credit Agreement (Mallinckrodt PLC)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) at any time after the establishment of Restatement Effective Date establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in partpart any Class of Term Loans pursuant to Section 2.11(b)(2) or any Indebtedness of LVLT, as selected by QC, Embarq or any of their respective Subsidiaries that is included in “Consolidated Priority Debt” (and, in the Borrowercase of revolving Indebtedness, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”correspondingly reduce commitments), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lenderby the Administrative Agent in its sole discretion); provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendmentthat:
(i) after giving effect to the borrowing of such Refinancing Term Commitments, Loans on the Refinancing Effective Date each of the conditions of Sections 4.02(a) and (b) set forth in Section 4.03 shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),satisfied;
(ii) each other than Permitted Earlier Maturity Debt, the final maturity date of the Refinancing Term Commitment Loans shall be no earlier than the earlier of (x) the final maturity date of the refinanced Indebtedness and (y) the 91st day following the Latest Maturity Date in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment effect at the time of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),incurrence thereof;
(iii) to the extent reasonably requested by the Administrative Agentother than Permitted Earlier Maturity Debt, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the lesser of (x) the then-remaining Weighted Average Life to Maturity of the refinanced Indebtedness and (y) 91 days after the Weighted Average Life to Maturity as of the Class of Term Loans then in effect for outstanding with the applicable Refinanced Debt (prior greatest remaining Weighted Average Life to any extension thereto),Maturity;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Indebtedness plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable substantially similar to, or (as reasonably determined by the Borrower in good faith) no more restrictive, taken as a whole, to the Refinancing Lenders providing Borrower and its Subsidiaries than the terms applicable to the Term B Loans or, if applicable, the Term Loans being refinanced or, with respect to any such Refinancing Term Commitments than those applicable Loans with amortization in excess of 1.0% per year that are being primarily syndicated to regulated banks in the primary syndication thereof and that are used to Refinance in whole or in part any Indebtedness of LVLT, QC, Embarq or their respective Subsidiaries, the Term A Loans (except, in each case, to the applicable Refinanced Debt (except for (1) extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (2other than the Guarantors) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for in respect of such Refinancing Term Commitments at Loans;
(vii) Refinancing Term Loans shall not be secured by any asset of the time Borrower and its subsidiaries other than the Collateral; and
(viii) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the case of incurrence or issuance thereof (in each casesuch prepayments pursuant to Section 2.11(b)(2)) hereunder, as determined by specified in the applicable Refinancing Amendment.
(b) The Borrower in good faith)may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the Refinancing Term Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may by written notice to the Administrative Agent at any time after the Restatement Effective Date establish one or more additional Facilities (each, a “Replacement Revolving Facility”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that: (i) after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.03 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including upfront fees) and accrued interest associated therewith; (iii) other than Permitted Earlier Maturity Debt, no Replacement Revolving Facility Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility Commitments) shall be substantially similar to, or (as determined by the Borrower in good faith) no more restrictive, taken as a whole, to the Borrower and its Subsidiaries than, those applicable to the Revolving Facility Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence or are otherwise reasonably acceptable to the Administrative Agent); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral. In addition, the Borrower may establish Replacement Revolving Facility Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Facility Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including upfront fees) and accrued interest associated therewith (it being understood that such Replacement Revolving Facility Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted Assignee hereunder) so long as (i) after giving effect to the establishment such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 4.03 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Facility Commitments, (ii) other than Permitted Earlier Maturity Debt, the remaining life to termination of such Replacement Revolving Facility Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) other than Permitted Earlier Maturity Debt, the final termination date of the Replacement Revolving Facility Commitments shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans, (iv) such Replacement Revolving Loans shall be secured by Liens on Collateral that rank pari passu in right of security to the other Loans, (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility Commitments) shall be substantially similar to, or (as determined by the Borrower in good faith) no more restrictive, taken as a whole, to the Borrower and its Subsidiaries than those applicable to the then effective Revolving Facilities (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent). Solely to the extent that an Issuing Bank or Swingline Lender is not a replacement issuing bank or replacement swingline lender, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank or Swingline Lender shall not be required to issue any letters of credit or swingline loan under such Replacement Revolving Facility and, to the extent it is necessary for such Issuing Bank or Swingline Lender to withdraw as an Issuing Bank or Swingline Lender, as the case may be, at the time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank or Swingline Lender, as the case may be, in its sole discretion. The Borrower agrees to reimburse each Issuing Bank or Swingline Lender, as the case may be, in full upon demand, for any reasonable and documented out-of-pocket cost or expense attributable to such withdrawal.
(d) The Borrower may approach any Lender or any other person that would be a permitted Assignee of a Revolving Facility Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Facility Commitments (subject to receipt of any consents that would be required for an assignment of Revolving Facility Commitments to such person pursuant to Section 9.04); provided, that any Lender offered or approached to provide all or a portion of the Replacement Revolving Facility Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Facility Commitment. Any Replacement Revolving Facility Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Facility Commitments for all purposes of this Agreement; provided, that any Replacement Revolving Facility Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Facility Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Facility Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Facility Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Facility Commitment, such Lender will be deemed to have an Other Revolving Facility Commitment having the terms of such Replacement Revolving Facility Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.23), (i) no Refinancing Term Loan or Replacement Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (ii) this Agreement shall impose no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Facility Commitment at any time or from time to time after the Closing Date issueother than those set forth in clauses (a) or (c) above, incur or otherwise obtain as applicable, and (it being understood that no Lender iii) all Refinancing Term Loans, Replacement Revolving Facility Commitments and all obligations in respect thereof shall be required to provide any such Indebtedness) (A) secured Indebtedness Loan Obligations under a separate agreement this Agreement and the other Loan Documents that rank equally and ratably in the form right of one or more series of senior secured notes that are secured on a pari passu basis security with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Term A Loans, “Refinanced Term A-1 Loans”), Term B Loans and other Loan Obligations.
Appears in 1 contract
Samples: Credit Agreement (Centurylink, Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(d) (which provisions shall not be applicable to this Section 2.22), the Borrower may, at any time or from time to time after the Closing Date, may by revocable written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all the proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than ten (10) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is ; provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date, each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Maturity Date maturity date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Term Loans plus amounts used to pay fees, prepayment premiums or penalties, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, prepayment penalties and premiums, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Administrative Agent) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the latest maturity date applicable to any Loans or Commitments hereunder or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the Borrower shall be in good faithcompliance immediately prior to and immediately after giving effect (including giving effect on a pro forma basis) to such refinancing with the Refinancing Lenders providing financial covenants set forth in Section 6.10 (without giving effect to any Acquisition Holiday) as of the last day of the fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04), as applicable;
(vii) there shall be no borrower (other than the Borrower) and no guarantors (other than the Loan Parties) in respect of such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each caseLoans, as determined by on the Borrower in good faith); provided, that Refinancing Effective Date;
(viii) any Unrestricted Subsidiary shall be an “unrestricted subsidiary” under the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, as determined on the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).Effective Date;
Appears in 1 contract
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), any Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and applicable Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lenderby the Administrative Agent in its sole discretion); provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and provided that:
(i) (as applicable) shall be met, assuming that before and after giving effect to the making or provision borrowing of such Refinancing Term Loans is an assignment on the Refinancing Effective Date each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans;
(iii) the Weighted Average Life to Maturity of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject no shorter than the then-remaining Weighted Average Life to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each Maturity of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of refinanced Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and;
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the aggregate principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and Loans shall not exceed the Loans in respect outstanding principal amount of the foregoingrefinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(v)) and optional prepayment or mandatory prepayment or redemption terms, of any Class which shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Parent in good faith) be substantially similar to, or no more restrictive to the Parent and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the with respect to Refinancing Term Loans may provide for secured by Liens on the ability Collateral that rank junior in right of security to participate on a pro rata basisthe Initial Term Loans, greater than such Liens will be subject to the Collateral Trust Agreement or less than pro rata basis in any voluntary repayments other Intercreditor Agreements, if any, as are reasonably necessary or prepayments of principal of Term Loans hereunder advisable (and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in reasonably acceptable to the case of a prepayment under Section 2.05(b)(iii)(B)Administrative Agent) in any mandatory repayments or prepayments of principal of Term Loans hereunder,to give effect to such security interest;
(vii) [reserved]there shall be no borrower (other than a Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans;
(viii) [reserved],Refinancing Term Loans shall not be secured by any asset of Parent and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.11(b)(2)) hereunder, as specified in the applicable Refinancing Amendment.
(b) The Parent or the applicable Borrower may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the applicable Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the applicable Borrower may at by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any time or from time to time Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the applicable Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the Closing date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that: (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date issueplus amounts used to pay fees, incur premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the applicable Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit under such Replacement Revolving Facility, which shall be as agreed between the applicable Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall (as determined by the Parent in good faith) be substantially similar to, or no more restrictive to the Parent and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Facility Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence or are otherwise obtain reasonably acceptable to the Administrative Agent); (v) there shall be no borrower (other than a Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of Parent and its Subsidiaries other than the Collateral, and (vii) if such Replacement Revolving Facility is secured by Liens on the Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to the Collateral Trust Agreement or any other Intercreditor Agreements, if any, as are reasonably necessary or advisable (and reasonably acceptable to the Administrative Agent) to give effect to such Liens. In addition, the applicable Borrower may establish Replacement Revolving Facility Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Facility Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement Revolving Facility Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted Assignee hereunder) so long as (i) before and after giving effect to the establishment such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 4.02 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Facility Commitments, (ii) the remaining life to termination of such Replacement Revolving Facility Commitments shall be no Lender shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Facility Commitments shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans, (iv) with respect to Replacement Revolving Loans secured by Liens on Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to the Collateral Trust Agreement or any other Intercreditor Agreements, if any, as are reasonably necessary or advisable (and reasonably acceptable to the Administrative Agent) to give effect to such Liens, (v) there shall be no borrower (other than a Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the applicable Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit under such Replacement Revolving Facility, which shall be as agreed between the applicable Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall (as determined by the Parent in good faith) be substantially similar to, or no more restrictive to the Parent and its Subsidiaries than, those, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent). Solely to the extent that an Issuing Bank is not a replacement issuing bank, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank shall not be required to provide issue any letters of credit under such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Replacement Revolving Facility and, to the control extent it is necessary for such Issuing Bank to withdraw as an Issuing Bank, as the case may be, at the time of remedies) (the establishment of such notesReplacement Revolving Facility, “Permitted Pari Passu Secured Refinancing Debt”)such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank, (B) secured Indebtedness in as the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loanscase may be, in its sole discretion. The applicable Borrower agrees to reimburse each caseIssuing Bank, that are secured on a pari passu or subordinated basis with as the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”)case may be, in each casefull upon demand, in exchange for, for any reasonable and documented out-of-pocket cost or expense attributable to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)withdrawal.
Appears in 1 contract
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) at any time after the establishment of Closing Date establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in partpart any Class of Term Loans pursuant to Section 2.11(b)(2) or any Indebtedness of LVLT, as selected by QC, Embarq or any of their respective Subsidiaries that is included in “Consolidated Priority Debt” (and, in the Borrowercase of revolving Indebtedness, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”correspondingly reduce commitments), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lenderby the Administrative Agent in its sole discretion); provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendmentthat:
(i) after giving effect to the borrowing of such Refinancing Term Commitments, Loans on the Refinancing Effective Date each of the conditions of Sections 4.02(a) and (b) set forth in Section 4.03 shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),satisfied;
(ii) each the final maturity date of the Refinancing Term Commitment Loans shall be no earlier than the earlier of (x) the final maturity date of the refinanced Indebtedness and (y) the 91st day following the Latest Maturity Date in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment effect at the time of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),incurrence thereof;
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the lesser of (x) the then-remaining Weighted Average Life to Maturity of the refinanced Indebtedness and (y) 91 days after the Weighted Average Life to Maturity as of the Class of Term Loans then in effect for outstanding with the applicable Refinanced Debt (prior greatest remaining Weighted Average Life to any extension thereto),Maturity;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent outstanding principal amount of the Administrative Agent refinanced Indebtedness plus amounts used to pay fees, premiums, costs and expenses (not to be unreasonably withheld),including original issue discount) and accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable substantially similar to, or (as reasonably determined by the Borrower in good faith) no more restrictive, taken as a whole, to the Refinancing Lenders providing Borrower and its Subsidiaries than the terms applicable to the Term B Loans or, if applicable, the Term Loans being refinanced or, with respect to any such Refinancing Term Commitments than those applicable Loans with amortization in excess of 1.0% per year that are being primarily syndicated to regulated banks in the primary syndication thereof and that are used to Refinance in whole or in part any Indebtedness of LVLT, QC, Embarq or their respective Subsidiaries, the Term A Loans (except, in each case, to the applicable Refinanced Debt (except for (1) extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (2other than the Guarantors) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for in respect of such Refinancing Term Commitments at Loans;
(vii) Refinancing Term Loans shall not be secured by any asset of the time Borrower and its subsidiaries other than the Collateral; and
(viii) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the case of incurrence or issuance thereof (in each casesuch prepayments pursuant to Section 2.11(b)(2)) hereunder, as determined by specified in the applicable Refinancing Amendment.
(b) The Borrower in good faith)may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the Refinancing Term Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may by written notice to the Administrative Agent at any time after the Closing Date establish one or more additional Facilities (each, a “Replacement Revolving Facility”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that: (i) after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.03 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including upfront fees) and accrued interest associated therewith; (iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility Commitments) shall be substantially similar to, or (as determined by the Borrower in good faith) no more restrictive, taken as a whole, to the Borrower and its Subsidiaries than, those applicable to the Revolving Facility Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence or are otherwise reasonably acceptable to the Administrative Agent); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral. In addition, the Borrower may establish Replacement Revolving Facility Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Facility Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including upfront fees) and accrued interest associated therewith (it being understood that such Replacement Revolving Facility Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted Assignee hereunder) so long as (i) after giving effect to the establishment such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 4.03 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Facility Commitments, (ii) the remaining life to termination of such Replacement Revolving Facility Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Facility Commitments shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans, (iv) such Replacement Revolving Loans shall be secured by Liens on Collateral that rank pari passu in right of security to the other Loans, (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility Commitments) shall be substantially similar to, or (as determined by the Borrower in good faith) no more restrictive, taken as a whole, to the Borrower and its Subsidiaries than those applicable to the then effective Revolving Facilities (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent). Solely to the extent that an Issuing Bank or Swingline Lender is not a replacement issuing bank or replacement swingline lender, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank or Swingline Lender shall not be required to issue any letters of credit or swingline loan under such Replacement Revolving Facility and, to the extent it is necessary for such Issuing Bank or Swingline Lender to withdraw as an Issuing Bank or Swingline Lender, as the case may be, at the time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank or Swingline Lender, as the case may be, in its sole discretion. The Borrower agrees to reimburse each Issuing Bank or Swingline Lender, as the case may be, in full upon demand, for any reasonable and documented out-of-pocket cost or expense attributable to such withdrawal.
(d) The Borrower may approach any Lender or any other person that would be a permitted Assignee of a Revolving Facility Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Facility Commitments (subject to receipt of any consents that would be required for an assignment of Revolving Facility Commitments to such person pursuant to Section 9.04); provided, that any Lender offered or approached to provide all or a portion of the Replacement Revolving Facility Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Facility Commitment. Any Replacement Revolving Facility Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Facility Commitments for all purposes of this Agreement; provided, that any Replacement Revolving Facility Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Facility Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Facility Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Facility Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Facility Commitment, such Lender will be deemed to have an Other Revolving Facility Commitment having the terms of such Replacement Revolving Facility Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.23), (i) no Refinancing Term Loan or Replacement Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (ii) this Agreement shall impose no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Facility Commitment at any time or from time to time after the Closing Date issueother than those set forth in clauses (a) or (c) above, incur or otherwise obtain as applicable, and (it being understood that no Lender iii) all Refinancing Term Loans, Replacement Revolving Facility Commitments and all obligations in respect thereof shall be required to provide any such Indebtedness) (A) secured Indebtedness Loan Obligations under a separate agreement this Agreement and the other Loan Documents that rank equally and ratably in the form right of one or more series of senior secured notes that are secured on a pari passu basis security with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Term A Loans, “Refinanced Term A-1 Loans”), Term B Loans and other Loan Obligations.
Appears in 1 contract
Samples: Credit Agreement (Centurylink, Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”)) or Refinancing Notes pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower, in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each Loans. Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of or Refinancing Notes shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before and immediately after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans or Refinancing Notes shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discountsaggregate principal amount of the Refinancing Term Loans or Refinancing Notes shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, fees, optional prepayment costs and redemptions terms and, subject to clauses expenses (iiincluding original issue discount) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will or Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Refinancing Lenders providing Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Initial Term A Loans (except to the extent such covenants and other terms apply solely to any period after the then applicable Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Refinancing Term Commitments Loans or Refinancing Notes may contain any financial maintenance covenants, so long as any such covenant shall not be more restrictive to the Borrower than (or in addition to) those applicable to the applicable Refinanced Debt Term Loans or Revolving Credit Commitments then outstanding (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall covenants are also apply added for the benefit of the Term Commitments (and any Lenders, which shall not require consent of the Lenders holding the Term Loans made pursuant theretoor Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement effective on such Refinancing Effective Date), ;
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans and Refinancing Notes;
(vii) Refinancing Term Loans and Refinancing Notes shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral; and
(xiiviii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described Loans and Refinancing Notes may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class asany mandatory prepayments hereunder, and have identical terms to, as specified in the applicable Class of Term Loans to which they applyRefinancing Amendment.
(fb) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing Section 9.04 to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange foror Refinancing Notes; provided, that any Lender offered or approached to extend, renew, replace, repurchase, retire provide all or refinance, and shall permanently terminate applicable commitments under, a portion of the applicable Refinanced DebtRefinancing Term Loans or Refinancing Notes may elect or decline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan or Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Credit Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Credit Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that (i) immediately before and immediately after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied, (ii) after giving effect to the establishment of any Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Credit Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Credit Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to fees, interest rates and other pricing terms) and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Credit Commitments and taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date in effect at the time of incurrence or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Replacement Revolving Facilities may contain any financial maintenance covenants, so long as any such covenant shall not be tighter than (or in addition to) those applicable to the Term Loans or Revolving Credit Commitment then outstanding (unless such covenants are also added for the benefit of the Lenders holding the Term Loans or Revolving Credit Commitments then outstanding, which shall not require consent of the Lenders holding the Term Loans or Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement upon the applicable Replacement Revolving Facility Effective Date); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantor) in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Credit Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral.
(d) The Borrower may approach any Lender or any other Person that would be a permitted assignee of a Revolving Credit Commitment pursuant to Section 9.04 to provide all or a portion of the Replacement Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Credit Commitments for all purposes of this Agreement; provided that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Credit Commitments.
(e) The Borrower and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Credit Commitment, such Lender will be deemed to have an Other Revolving Credit Commitment having the terms of such Replacement Revolving Credit Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.20), (i) the aggregate amount of Extended Term Loans and Extended Revolving Credit Commitments will not be included in the calculation of the aggregate amount of all Incremental Commitments pursuant to clause (a) of Section 2.17 to the extent such Loans and Commitments in connection with such Extension Amendment were not incurred thereunder, (ii) no Refinancing Term Loan or Replacement Revolving Credit Commitment is required to be in any minimum amount or any minimum increment, (iii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Credit Commitment at any time or from time to time after the Closing Date issueother than those set forth in clauses (a) or (c) above, incur or otherwise obtain as applicable, and (it being understood that no Lender iv) all Refinancing Term Loans, Replacement Revolving Credit Commitments and all obligations in respect thereof shall be required to provide Obligations under this Agreement and the other Loan Documents that rank equally and ratably in right of security with the other Secured Obligations. In connection with any Refinancing Amendment, the Administrative Agent shall have received customary legal opinions or other certificates reasonably requested by the it in connection with any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard transaction. Notwithstanding anything to the control of remedies) (such notescontrary, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness this Section 2.20 shall supersede any provisions in Section 2.15 or Section 9.02 to the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Samples: Credit Agreement (Roku, Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any Loans (or one or more Class(es) of Loans). Each such notice shall specify the existing Class or Classes applicable Class(es) of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class being refinanced and the Refinancing Term Loans of such Class made pursuant thereto.
date (c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loaneach, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Effective Date”) of each of on which the following conditionsBorrower proposes that the Refinancing Loans shall be made, together with any other conditions set forth which shall be a date not earlier than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in such Refinancing Amendmentits sole discretion); provided that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments, Loans on the conditions Refinancing Effective Date:
(A) the representations and warranties of Sections 4.02(a) Borrower set forth in this Agreement and (b) the other Loan Documents shall be satisfied true and correct in all material respects (it being understood except in the case of any such representations and warranty that all references expressly relates to “the an earlier given date of or period, in which case such Credit Extension” or similar language in such Section 4.02 representation and warranty shall be deemed to refer to true and correct in all material respects as of the applicable Refinancing Facility Closing Daterespective earlier date or respective period, as the case may be),; and
(B) no Default shall have occurred and be continuing;
(ii) each the final maturity date of the Refinancing Term Commitment Loans shall be in an aggregate principal amount that is not less no earlier than C$5,000,000 and shall be in an increment the 91st day following the Maturity Date of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term refinanced Loans),;
(iii) the Weighted Average Life to Maturity of such Refinancing Loans shall be no shorter than the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel then-remaining Weighted Average Life to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit Maturity of the applicable Loan Documents, andrefinanced Loans;
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the aggregate principal amount of each Borrowingthe Refinancing Loans shall not exceed the outstanding principal amount of the refinanced Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.and accrued interest associated therewith;
(ev) The all other terms applicable to such Refinancing Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing)optional prepayment, of any Class mandatory prepayment, amortization or redemption terms, which shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (when taken as a whole) no more favorable (whole and as reasonably determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower than, the terms (taken as a whole) applicable to the applicable Refinanced Debt Loans being refinanced (except for (1) to the extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date then in effect or are otherwise reasonably acceptable to the Administrative Agent); provided that any Refinancing Loans that are unsecured or rank junior in right of security to the Initial Loans shall not have scheduled amortization commencing prior to the Latest Maturity Date other than at a nominal rate;
(vi) with respect to Refinancing Loans secured by Liens on the Collateral that rank junior in right of security to the Initial Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement;
(vii) there shall be no borrower (other than the Borrower) and no guarantors in respect of such Refinancing Loans (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such other borrower or guarantor provides a Guarantee of the Obligations on terms and conditions reflect market terms and conditions for reasonably acceptable to the Administrative Agent substantially concurrently with the making of such Refinancing Term Commitments at Loans);
(viii) Refinancing Loans shall not be secured by any asset of the time Borrower and its Subsidiaries other than the Collateral (or assets that become Collateral substantially concurrently with the making of incurrence such Refinancing Loans); and
(ix) Refinancing Loans may participate on a pro rata basis or issuance thereof on a less than pro rata basis (but not on a greater than pro rata basis) in each caseany mandatory prepayments hereunder, as determined by specified in the applicable Refinancing Amendment.
(b) The Borrower in good faith)may approach any Lender or any other person that would be a permitted assignee pursuant to Section 9.04 to provide all or a portion of the Refinancing Loans; provided, that the terms any Lender offered or approached to provide all or a portion of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans may elect or decline, in its sole discretion, to provide a Refinancing Loan. Any Refinancing Loans made pursuant thereto) on any Refinancing Effective Date shall form part be designated an additional Class of Loans for all purposes of this Agreement; provided, further, that any Refinancing Loans may, to the same Class as, and have identical terms to, extent provided in the applicable Refinancing Amendment governing such Refinancing Loans, be designated as an increase in any previously established Class of Term Loans made to which they applythe Borrower.
(fc) Commitments in respect of The Borrower and each Lender providing the applicable Refinancing Term Loans shall become Commitments under execute and deliver to the Administrative Agent an amendment to this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, and such other documentation as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative AgentAgent shall reasonably specify to evidence such Refinancing Loans. The Refinancing Amendment may, without the consent For purposes of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may Documents, if a Lender is providing a Refinancing Loan, such Lender will be necessary deemed to have an Other Loan having the terms of such Refinancing Loan. Notwithstanding anything to the contrary set forth in this Agreement or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of any other Loan Document (including without limitation this Section 2.15. The Borrower will use the proceeds2.19), if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu no Refinancing Loan is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of incurring any Refinancing Term Loans, the Borrower may Loan at any time or from time to time after the Closing Date issueother than those set forth in clause (a) above, incur or otherwise obtain and (it being understood that no Lender iii) all Refinancing Loans and all obligations in respect thereof shall be required Obligations under this Agreement and the other Loan Documents that rank equally and ratably in right of security with the Initial Loans and other Secured Obligations (other than Refinancing Loans that rank junior in right of security with the Initial Loans, and except to provide the extent any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that Refinancing Loans are secured by the Collateral on a pari passu junior lien basis in accordance with the Obligations provisions above). Upon the effectiveness of any Refinancing Amendment, this Agreement shall be amended without the consent of any other Lenders to the extent (but without regard only to the control extent) necessary to reflect the existence and terms of remedies) (the Refinancing Loans evidenced thereby as provided for in Section 9.02. Any such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness deemed amendment may be memorialized in writing by the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis Administrative Agent with the Obligations Borrower’s consent (such notes or loans, “Permitted Junior Secured Refinancing Debt”not to be unreasonably withheld) and (C) senior unsecured or subordinated unsecured Indebtedness in furnished to the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)other parties hereto.
Appears in 1 contract
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice to each Co-Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in respect of all or any portion of the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of one or more new Classes of Term Loans made to such Co-Borrower then outstanding under this Agreement (which will be deemed to include any such new Classthen outstanding Other Term Loans), “New Refinancing in the form of Other Term Loans or Other Loan Term Commitments”, in each case pursuant to a Refinancing Amendment; provided that such Credit Agreement Refinancing Indebtedness (i) or will rank pari passu in right of payment and of security with the other Loans and Commitments hereunder, (ii) increases will have such pricing and optional prepayment terms as may be agreed by the Designated Company and the Lenders thereof, (iii) will have a maturity date that is not prior to one or more existing Classes of term loans under this Agreement the maturity date of, and will have a Weighted Average Life to Maturity that is not shorter than the Term Loans being refinanced, (any such increase iv) subject to an existing Classclause (ii) above, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange forwill have terms and conditions that are substantially identical to, or less favorable to extendthe investors providing such Credit Agreement Refinancing Indebtedness than, renewthe Refinanced Debt and (v) the proceeds of such Credit Agreement Refinancing Indebtedness shall be applied, replacesubstantially concurrently with the incurrence thereof, repurchase, retire or refinance, in whole or in part, as selected by to the Borrower, any one or more prepayment of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing outstanding Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of being so refinanced; provided further that the terms and conditions in this Section 2.15, (i) each applicable to such Credit Agreement Refinancing Term Lender of such Class shall make a Term Loan to Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class Designated Company and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from Lenders thereof and applicable only during periods after the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender Latest Maturity Date that is an Affiliated Lender in effect on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) obtained. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term CommitmentsSection 4.03 and, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s of legal opinions, board resolutions, officers’ certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, and/or reaffirmation agreements consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing under Section 4.02. Each Class of Term Loans Credit Agreement Refinancing Indebtedness incurred under this Section 2.24 shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the in an aggregate principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall is (x) rank pari passu or junior not less than $50,000,000 in right the case of payment and shall be unsecured or rank pari passu or junior in right of security with all Other Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt Loans and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive an integral multiple of $1,000,000 in excess thereof. The Administrative Agent shall promptly notify each Lender as to the Borrower and the Guarantors than the Loan Documents,
(ii) effectiveness of each Refinancing Term Loans shall not mature earlier than the Maturity Date Amendment. Each of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity parties hereto hereby agrees that, upon the effectiveness of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans Amendment, this Agreement shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt deemed amended to the extent permanently terminated at (but only to the time of incurrence of such new Indebtedness plus extent) necessary to reflect the amount of any premium or penalty or premium required to be paid under the existence and terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and amendments necessary to treat the Loans in respect thereof) shall be (taken and Commitments subject thereto as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Other Term Loans made pursuant theretoand/or Other Term Loan Commitments), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerDesignated Company, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B)Section.
(gb) [reserved].
(h) Any New Refinancing Term Commitment This Section 2.24 shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring supersede any Refinancing Term Loans, the Borrower may at any time provisions in Section 2.14 or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Section 11.02 to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice to each Co-Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in respect of all or any portion of the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of one or more new Classes of Term Loans made to such Co-Borrower then outstanding under this Agreement (which will be deemed to include any such new Classthen outstanding Other Term Loans), “New Refinancing in the form of Other Term Loans or Other Loan Term Commitments”, in each case pursuant to a Refinancing Amendment; provided that such Credit Agreement Refinancing Indebtedness (i) or will rank pari passu in right of payment and of security with the other Loans and Commitments hereunder, (ii) increases will have such pricing and optional prepayment terms as may be agreed by the Designated Company and the Lenders thereof, (iii) will have a maturity date that is not prior to one or more existing Classes of term loans under this Agreement the maturity date of, and will have a Weighted Average Life to Maturity that is not shorter than the Term Loans being refinanced, (any such increase iv) subject to an existing Classclause (ii) above, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange forwill have terms and conditions 147 that are substantially identical to, or less favorable to extendthe investors providing such Credit Agreement Refinancing Indebtedness than, renewthe Refinanced Debt and (v) the proceeds of such Credit Agreement Refinancing Indebtedness shall be applied, replacesubstantially concurrently with the incurrence thereof, repurchase, retire or refinance, in whole or in part, as selected by to the Borrower, any one or more prepayment of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing outstanding Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of being so refinanced; provided further that the terms and conditions in this Section 2.15, (i) each applicable to such Credit Agreement Refinancing Term Lender of such Class shall make a Term Loan to Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class Designated Company and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from Lenders thereof and applicable only during periods after the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender Latest Maturity Date that is an Affiliated Lender in effect on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) obtained. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term CommitmentsSection 4.03 and, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s of legal opinions, board resolutions, officers’ certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, and/or reaffirmation agreements consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing under Section 4.02. Each Class of Term Loans Credit Agreement Refinancing Indebtedness incurred under this Section 2.24 shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the in an aggregate principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall is (x) rank pari passu or junior not less than $50,000,000 in right the case of payment and shall be unsecured or rank pari passu or junior in right of security with all Other Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt Loans and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive an integral multiple of $1,000,000 in excess thereof. The Administrative Agent shall promptly notify each Lender as to the Borrower and the Guarantors than the Loan Documents,
(ii) effectiveness of each Refinancing Term Loans shall not mature earlier than the Maturity Date Amendment. Each of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity parties hereto hereby agrees that, upon the effectiveness of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans Amendment, this Agreement shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt deemed amended to the extent permanently terminated at (but only to the time of incurrence of such new Indebtedness plus extent) necessary to reflect the amount of any premium or penalty or premium required to be paid under the existence and terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and amendments necessary to treat the Loans in respect thereof) shall be (taken and Commitments subject thereto as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Other Term Loans made pursuant theretoand/or Other Term Loan Commitments), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerDesignated Company, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B)Section.
(gb) [reserved].
(h) Any New Refinancing Term Commitment This Section 2.24 shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring supersede any Refinancing Term Loans, the Borrower may at any time provisions in Section 2.14 or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Section 11.02 to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”)) or Refinancing Notes pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower, in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each Loans. Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of or Refinancing Notes shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before and immediately after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans or Refinancing Notes shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discountsaggregate principal amount of the Refinancing Term Loans or Refinancing Notes shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, fees, optional prepayment costs and redemptions terms and, subject to clauses expenses (iiincluding original issue discount) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will or Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Refinancing Lenders providing Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Initial Term B-1 Loans (except to the extent such covenants and other terms apply solely to any period after the then applicable Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Refinancing Term Commitments Loans or Refinancing Notes may contain any financial maintenance covenants, so long as any such covenant shall not be more restrictive to the Borrower than (or in addition to) those applicable to the applicable Refinanced Debt Term Loans or Revolving Credit Commitment then outstanding (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall covenants are also apply added for the benefit of the Term Commitments (and any Lenders, which shall not require consent of the Lenders holding the Term Loans made pursuant theretoor Revolving Credit Commitments then outstanding and which the Administrative Agent shall add to this Agreement effective on such Refinancing Effective Date), ;
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans and Refinancing Notes;
(vii) Refinancing Term Loans and Refinancing Notes shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral; and
(xiiviii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described Loans and Refinancing Notes may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class asany mandatory prepayments hereunder, and have identical terms to, as specified in the applicable Class of Term Loans to which they applyRefinancing Amendment.
(fb) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing Section 9.04 to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange foror Refinancing Notes; provided, that any Lender offered or approached to extend, renew, replace, repurchase, retire provide all or refinance, and shall permanently terminate applicable commitments under, a portion of the applicable Refinanced DebtRefinancing Term Loans or Refinancing Notes may elect or decline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan or Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, the Borrower may at be designated as an increase in any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form previously established Class of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Term Loans made to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Borrower.
Appears in 1 contract
Samples: Credit Agreement (Cavium, Inc.)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”)) or Refinancing Notes pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower, in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each Loans. Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of or Refinancing Notes shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) immediately before and immediately after giving effect to the borrowing of such Refinancing Term Commitments shall Loans on the Refinancing Effective Date each of the conditions set forth in Section 4.01(h)(ii)(A) and (xh)(ii)(B) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans or Refinancing Notes shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discountsaggregate principal amount of the Refinancing Term Loans or Refinancing Notes shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, fees, optional prepayment costs and redemptions terms and, subject to clauses expenses (iiincluding original issue discount) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will or Refinancing Notes (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms and optional prepayment or mandatory prepayment or redemption terms, which shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or not materially less favorable to the Refinancing Lenders providing Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Initial Term B Loans and the 2018 Incremental Term B Loans (except to the extent such covenants and other terms apply solely to any period after the then applicable Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent); provided that any such Refinancing Term Commitments Loans or Refinancing Notes may contain any financial maintenance covenants, so long as any such covenant shall not be more restrictive to the Borrower than (or in addition to) those applicable to the applicable Refinanced Debt Term Loans then outstanding (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall covenants are also apply added for the benefit of the Term Commitments (and any Lenders, which shall not require consent of the Lenders holding the Term Loans made pursuant theretothen outstanding and which the Administrative Agent shall add to this Agreement effective on such Refinancing Effective Date), ;
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans and Refinancing Notes;
(vii) Refinancing Term Loans and Refinancing Notes shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral; and
(xiiviii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described Loans and Refinancing Notes may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class asany mandatory prepayments hereunder, and have identical terms to, as specified in the applicable Class of Term Loans to which they applyRefinancing Amendment.
(fb) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement The Borrower may approach any Lender or any other Person that would be a permitted assignee pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing Section 9.04 to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange foror Refinancing Notes; provided, that any Lender offered or approached to extend, renew, replace, repurchase, retire provide all or refinance, and shall permanently terminate applicable commitments under, a portion of the applicable Refinanced DebtRefinancing Term Loans or Refinancing Notes may elect or decline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan or Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) The Borrower may and each Lender providing the applicable Refinancing Term Loans shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans. For purposes of this Agreement and the other Loan Documents, a Lender providing a Refinancing Term Loan will be deemed to have an Other Term Loan having the terms of such Refinancing Term Loan. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.20), (i) no Refinancing Term Loan is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of any Refinancing Term Loan at any time or from time to time after the Closing Date issue, incur or otherwise obtain other than those set forth in clause (it being understood that no Lender a) above and (iii) all Refinancing Term Loans and all obligations in respect thereof shall be required to provide Obligations under this Agreement and the other Loan Documents that rank equally and ratably in right of security with the other Secured Obligations. In connection with any Refinancing Amendment, the Administrative Agent shall have received customary legal opinions or other certificates reasonably requested by it in connection with any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard transaction. Notwithstanding anything to the control of remedies) (such notescontrary, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness this Section 2.20 shall supersede any provisions in Section 2.15 or Section 9.02 to the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Refinancing Amendments. (a) The Borrower mayNotwithstanding anything to the contrary in this Agreement, at any time or from time including Section 2.18(c) (which provisions shall not be applicable to time after this Section 2.23), the Closing Date, Borrowers may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrowers propose that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.01 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and the Lenders thereunder; provided that a currency expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than Canadian Dollars provisions relating to original issue discount, upfront fees, interest rates and U.S. Dollars any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the consent of provisions set forth in Section 2.21(b)(v)) and optional prepayment or mandatory prepayment or redemption terms, which shall be as agreed between the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower Borrowers and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Lux Borrower in good faith) be substantially similar to, or not materially less favorable to the Parent and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the with respect to Refinancing Term Loans may provide for secured by Liens on the ability Collateral that rank junior in right of security to participate on the Initial Term B Loans, such Liens will be subject to a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,Permitted Junior Intercreditor Agreement;
(vii) [reserved]there shall be no direct or contingent obligor in respect of such Refinancing Term Loans except (x) the borrowers shall be comprised solely of the Lux Borrower (with the Co-Borrower a joint and several co-borrower as provided in this Agreement) and (y) the guarantors shall constitute the Guarantors hereunder;
(viii) [reserved],Refinancing Term Loans shall not be secured by any asset of the Parent and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.11(b)(2)) hereunder, as specified in the applicable Refinancing Amendment.
(b) The Borrowers may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower may at any time or from time Borrowers.
(c) Notwithstanding anything to time after the Closing Date issuecontrary in this Agreement, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtednessincluding Section 2.18(c) (A) secured Indebtedness under a separate agreement in which provisions shall not be applicable to this Section 2.23), the form of Borrowers may by written notice to the Administrative Agent establish one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).additional Facilities
Appears in 1 contract
Samples: Credit Agreement (Mallinckrodt PLC)
Refinancing Amendments. (a) The Borrower maymay obtain, at from any time Lender or from time any other bank, financial institution or other institutional lender or investor that agrees to time after the Closing Date, by notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of one or more new Classes of Term Loans under this Agreement (provide any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class portion of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any or Refinancing Term Loan Commitments of any Class are effected, subject pursuant to the satisfaction of the terms and conditions a Refinancing Amendment in accordance with this Section 2.152.29 (each, an “Additional Refinancing Lender”) (provided that (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Refinancing Lender’s making such Refinancing Term Loans to the extent such consent, if such consent any, would be required under Section 10.07(b) the definition of “Eligible Assignee” for an assignment of Term Loans to such Lender or Additional Lender; providedRefinancing Lender and (ii) with respect to Refinancing Term Loans, further, that no any Additional Refinancing Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide providing Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions same restrictions set forth in Section 9.04 as they would otherwise be subject to with respect to any purchase by or assignment to such Permitted Investor of Term Loans) Credit Agreement Refinancing Indebtedness in the form of Refinancing Term Loans or Refinancing Term Loan Commitments in respect of all or any portion of any Class of Term Loans then outstanding under this Agreement (which will be deemed to include any then outstanding Refinancing Term Loans), pursuant to a Refinancing Amendment:
; provided that such Credit Agreement Refinancing Indebtedness (iA) after giving effect to will rank pari passu in right of payment and security with the other Term Loans and Commitments hereunder, (B) will have such Refinancing Term Commitmentspricing (including interest rates, the conditions of Sections 4.02(arate floors, fees, original issue discounts, premiums) and optional prepayment terms as may be agreed by the Borrower and the Lenders thereof and (C) will have terms and conditions that are otherwise consistent with the applicable requirements set forth in the definition of “Credit Agreement Refinancing Indebtedness”.
(b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),[Reserved].
(iic) each Each Class of Credit Agreement Refinancing Term Commitment Indebtedness incurred under this Section 2.29 shall be in an aggregate principal amount that is not less than C$5,000,000 and $10,000,000 in the case of Refinancing Term Loans an integral multiple of $1,000,000 in excess thereof. The effectiveness of any Refinancing Amendment shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal subject to the entire outstanding principal amount satisfaction on the date thereof of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the following conditions: receipt by the Administrative Agent of (A) (Ii) customary officer’s certificates and legal opinions, board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion officers’ certificates reasonably satisfactory to the Administrative Agent), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, Agent and (Cii) supplemental or reaffirmation agreements and/or such amendments to the Collateral Security Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any such Credit Agreement Refinancing Term Commitment Indebtedness is provided with the benefit of the applicable Loan Documents, and. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment.
(ivd) Each of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended pursuant to a Refinancing Amendment to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Term Loans and Commitments subject thereto as Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the and/or Refinancing Term Commitments (and the Loans in respect of the foregoingLoan Commitments), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than make such other changes to this Agreement and the Maturity Date other Loan Documents consistent with the provisions and intent of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currencySection 9.08, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance2.29, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B)Required Lenders hereby expressly authorize the Administrative Agent to enter into any such Refinancing Amendment.
(ge) [reserved].
(h) Any New This Section 2.29 shall supersede any provisions in Section 2.19 or 9.08 to the contrary. For the avoidance of doubt, any of the provisions of this Section 2.29 may be amended with the consent of the Required Lenders. For the avoidance of doubt, no Refinancing Term Commitment Amendment shall effect any amendments that would require the consent of all Lenders pursuant to Section 9.08(b)(iv), unless each such Lender has, or all such Lenders have, as the case may be, given its or their consent to such amendment. No Lender shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring under any obligation to provide any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Loan Commitment unless such Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under executes a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)Amendment.
Appears in 1 contract
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice to each Co-Borrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in respect of all or any portion of the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of one or more new Classes of Term Loans made to such Co-Borrower then outstanding under this Agreement (which will be deemed to include any such new Classthen outstanding Other Term Loans), “New Refinancing in the form of Other Term Loans or Other Loan Term Commitments”, in each case pursuant to a Refinancing Amendment; provided that such Credit Agreement Refinancing Indebtedness (i) or will rank pari passu in right of payment and of security with the other Loans and Commitments hereunder, (ii) increases will have such pricing and optional prepayment terms as may be agreed by the Designated Company and the Lenders thereof, (iii) will have a maturity date that is not prior to one or more existing Classes of term loans under this Agreement the maturity date of, and will have a Weighted Average Life to Maturity that is not shorter than the Term Loans being refinanced, (any such increase iv) subject to an existing Classclause (ii) above, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange forwill have terms and conditions that are substantially identical to, or less favorable to extendthe investors providing such Credit Agreement Refinancing Indebtedness than, renewthe Refinanced Debt and (v) the proceeds of such Credit Agreement Refinancing Indebtedness shall be applied, replacesubstantially concurrently with the incurrence thereof, repurchase, retire or refinance, in whole or in part, as selected by to the Borrower, any one or more prepayment of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing outstanding Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of being so refinanced; provided further that the terms and conditions in this Section 2.15, (i) each applicable to such Credit Agreement Refinancing Term Lender of such Class shall make a Term Loan to Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class Designated Company and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from Lenders thereof and applicable only during periods after the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender Latest Maturity Date that is an Affiliated Lender in effect on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) obtained. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term CommitmentsSection 4.03 and, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s of legal opinions, board resolutions, officers’ certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, and/or reaffirmation agreements consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing under Section 4.02. Each Class of Term Loans Credit Agreement Refinancing Indebtedness incurred under this Section 2.24 shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the in an aggregate 1060441.101066947.03-CHISR01A - MSW principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall is (x) rank pari passu or junior not less than $50,000,000 in right the case of payment and shall be unsecured or rank pari passu or junior in right of security with all Other Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt Loans and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive an integral multiple of $1,000,000 in excess thereof. The Administrative Agent shall promptly notify each Lender as to the Borrower and the Guarantors than the Loan Documents,
(ii) effectiveness of each Refinancing Term Loans shall not mature earlier than the Maturity Date Amendment. Each of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity parties hereto hereby agrees that, upon the effectiveness of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans Amendment, this Agreement shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt deemed amended to the extent permanently terminated at (but only to the time of incurrence of such new Indebtedness plus extent) necessary to reflect the amount of any premium or penalty or premium required to be paid under the existence and terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and amendments necessary to treat the Loans in respect thereof) shall be (taken and Commitments subject thereto as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Other Term Loans made pursuant theretoand/or Other Term Loan Commitments), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerDesignated Company, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B)Section.
(gb) [reserved].
(h) Any New Refinancing Term Commitment This Section 2.24 shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring supersede any Refinancing Term Loans, the Borrower may at any time provisions in Section 2.14 or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Section 11.02 to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.05(b)(iv), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not less than ten (10) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the Borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the maturity date of the refinanced Term Loans;
(iii) the weighted average life to maturity of such Refinancing Term Loans shall be no shorter than the then-remaining weighted average life to maturity of the refinanced Term Loans;
(iv) the aggregate principal amount of the Refinancing Term Loans shall not mature earlier than exceed the Maturity Date outstanding principal amount of the applicable Refinanced Debt as then in effect,
(iii) Refinancing refinanced Term Loans shall have a Weighted Average Life plus amounts used to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, pay fees, optional prepayment expenses, commissions, underwriting discounts and redemptions terms and, subject to clauses (ii) premiums and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),accrued interest associated therewith;
(v) the interest rate (including margin and floors) all other terms applicable to any such Refinancing Term Loans will (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms, optional prepayment or mandatory prepayment or redemption terms shall be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) to the extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (2other than the Guarantors) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for in respect of such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), andLoans;
(xiivii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed not be secured by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion asset of the Administrative Agent Borrower and its subsidiariesSubsidiaries other than the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Collateral; and
(viii) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in exchange forany mandatory prepayments (other than as provided otherwise in the case of such prepayments pursuant to Section 2.05(b)(iv)) hereunder, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, as specified in the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B)Refinancing Amendment.
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).
Appears in 1 contract
Samples: Credit Agreement (Callaway Golf Co)
Refinancing Amendments. (a) The Borrower mayNotwithstanding anything to the contrary in this Agreement, at any time or from time to time after the Closing Date, Company may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Company proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.02 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and the Lenders thereunder; provided that a currency expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than Canadian Dollars provisions relating to original issue discount, upfront fees, interest rates and U.S. Dollars any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the consent of provisions set forth in Section 2.09(c)(v)) and optional prepayment or mandatory prepayment or redemption terms, which shall be as agreed between the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower Company and the Lenders providing such Refinancing Term Loans,) taken as a whole shall (as determined by the Company in good faith) be substantially similar to, or no more restrictive to the Company and its Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) the with respect to Refinancing Term Loans may provide for secured by Liens on the ability Collateral that rank junior in right of security to participate on the Initial Term Loans, such Liens will be subject to a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,Permitted Junior Intercreditor Agreement;
(vii) [reserved]there shall be no borrower (other than the Borrowers) and no guarantors (other than the Subsidiary Guarantors) in respect of such Refinancing Term Loans;
(viii) [reserved],Refinancing Term Loans shall not be secured by any asset of the Company and its Subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans shall may participate on a pro rata basis or on a less than pro rata basis (but not have on a greater principal amount than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the principal amount case of such prepayments pursuant to Section 2.11(b)(2)) hereunder, as specified in the applicable Refinancing Amendment.
(b) The Company may approach any Lender or any other person that would be a permitted assignee pursuant to Section 10.04 to provide all or a portion of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower Company.
(c) Notwithstanding anything to the contrary in this Agreement, the Company may at by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Credit Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any time or from time to time Class of Revolving Credit Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Company proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the Closing date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that: (i) before and after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.02 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date issueplus amounts used to pay fees, incur premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Credit Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Credit Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Company and the Lenders providing such Replacement Revolving Credit Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Company, the Lenders providing such Replacement Revolving Credit Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Credit Commitments) taken as a whole shall (as determined by the Company in good faith) be substantially similar to, or no more restrictive to the Company and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence or are otherwise obtain reasonably acceptable to the Administrative Agent); (v) there shall be no borrower (other than the Borrowers) and no guarantors (other than the Subsidiary Guarantors) in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Credit Commitments and extensions of credit thereunder shall not be secured by any asset of the Company and its Subsidiaries other than the Collateral, and (vii) if such Replacement Revolving Facility is secured by Liens on the Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement. In addition, the Company may establish Replacement Revolving Credit Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Credit Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement Revolving Credit Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted assignee hereunder) so long as (i) before and after giving effect to the establishment such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 4.02 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Credit Commitments, (ii) the remaining life to termination of such Replacement Revolving Credit Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Credit Commitments shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans, (iv) with respect to Replacement Revolving Loans secured by Liens on Collateral that rank junior in right of security to the Initial Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement, (v) there shall be no borrower (other than the Borrowers) and no guarantors (other than the Subsidiary Guarantors) in respect of such Replacement Revolving Facility; and (vi) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Company and the Lenders providing such Replacement Revolving Credit Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Company, the Lenders providing such Replacement Revolving Credit Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Credit Commitments) taken as a whole shall (as determined by the Company in good faith) be substantially similar to, or no more restrictive to the Company and its Subsidiaries than, those, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent). Solely to the extent that an Issuing Bank or Swingline Lender is not a replacement issuing bank or replacement swingline lender, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank or Swingline Lender shall not be required to issue any letters of credit or swingline loan under such Replacement Revolving Facility and, to the extent it is necessary for such Issuing Bank or Swingline Lender to withdraw as an Issuing Bank or Swingline Lender, as the case may be, at the time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank or Swingline Lender, as the case may be, in its sole discretion. The Company agrees to reimburse each Issuing Bank or Swingline Lender, as the case may be, in full upon demand, for any reasonable and documented out-of-pocket cost or expense attributable to such withdrawal.
(d) The Company may approach any Lender or any other person that would be a permitted assignee of a Revolving Credit Commitment pursuant to Section 10.04 to provide all or a portion of the Replacement Revolving Credit Commitments; provided, that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Credit Commitments for all purposes of this Agreement; provided, that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Credit Commitments.
(e) The Company and each Lender providing the applicable Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such Indebtedness) other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, (A) secured Indebtedness under if a separate agreement in Lender is providing a Refinancing Term Loan, such Lender will be deemed to have an Other Term Loan having the form terms of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), Term Loan and (B) secured Indebtedness in if a Lender is providing a Replacement Revolving Credit Commitment, such Lender will be deemed to have an Other Revolving Credit Commitment having the form terms of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).Replacement Revolving Credit
Appears in 1 contract
Samples: Credit Agreement (Schulman a Inc)
Refinancing Amendments. (a) The Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may, at any time or from time to time after the Closing Date, may by written notice to the Administrative Agent (a “Refinancing Loan Request”), request (i) the establishment of establish one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes additional tranches of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitmentsloans, “Refinancing Term CommitmentsLoans”), in each case, established in exchange for, or all Net Proceeds of which are used to extend, renew, replace, repurchase, retire or refinance, Refinance in whole or in part, as selected by the Borrower, part any one or more Class of the existing Class or Classes of Term Loans or Commitments (with respect pursuant to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”Section 2.11(b)(2), whereupon the Administrative Agent shall promptly deliver a copy of each . Each such notice to each of shall specify the Lenders.
date (b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effectedeach, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanEffective Date”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to on which the Refinancing Term Commitment of such Class and Borrower proposes that the Refinancing Term Loans of shall be made, which shall be a date not earlier than five (5) Business Days after the date on which such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant notice is delivered to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not or such shorter period agreed to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentits sole discretion), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Commitments shall (x) rank pari passu or junior Loans on the Refinancing Effective Date each of the conditions set forth in right of payment and Section 4.03 shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall not mature be no earlier than the Term Facility Maturity Date of the applicable Refinanced Debt as then in effect,refinanced Term Loans;
(iii) Refinancing Term Loans shall have a the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no less shorter than the then-remaining Weighted Average Life to Maturity as then in effect for of the applicable Refinanced Debt (prior to any extension thereto),refinanced Term Loans;
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, aggregate principal amount of the amortization schedule applicable to any Refinancing Term Loans shall be determined by not exceed the Borrower outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and the Lenders thereunder; provided that a currency expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than Canadian Dollars provisions relating to original issue discount, upfront fees, interest rates and U.S. Dollars any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the consent of the Administrative Agent (not to provisions set forth in Section 2.21(b)(v)) and optional prepayment or mandatory prepayment or redemption terms, which shall be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by as agreed between the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable whole shall (as reasonably determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Refinancing Lenders providing such Refinancing Term Commitments than those Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the applicable Refinanced Debt Term Loans being refinanced (except for (1) to the extent such covenants or and other provisions applicable only terms apply solely to periods any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) with respect to Refinancing Term Loans secured by Liens on the Collateral that rank junior in right of security to the Term BA-1 Loans, Term B-2 Loans and/or Term B-23 Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement;
(vii) there shall be no borrower (other than the Borrower) and no guarantors (2other than the Guarantors) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for in respect of such Refinancing Term Commitments at Loans;
(viii) Refinancing Term Loans shall not be secured by any asset of the time Borrower and its subsidiaries other than the Collateral; and
(ix) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the case of incurrence or issuance thereof (in each casesuch prepayments pursuant to Section 2.11(b)(2)) hereunder, as determined by specified in the applicable Refinancing Amendment.
(b) The Borrower in good faith)may approach any Lender or any other person that would be a permitted Assignee pursuant to Section 9.04 to provide all or a portion of the Refinancing Term Loans; provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing offered or approached to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary all or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, a portion of the Refinancing Term Loans in exchange for, may elect or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debtdecline, in each caseits sole discretion, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New to provide a Refinancing Term Commitment Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a separate an additional Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring ; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to this Section 2.23), the Borrower may at by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Facility Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any time or from time to time Class of Revolving Facility Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Facility Commitments shall become effective, which shall be a date not less than five (5) Business Days after the Closing date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that: (i) before and after giving effect to the establishment of such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 4.03 shall be satisfied; (ii) after giving effect to the establishment of any Replacement Revolving Facility Commitments and any concurrent reduction in the aggregate amount of any other Revolving Facility Commitments, the aggregate amount of Revolving Facility Commitments shall not exceed the aggregate amount of the Revolving Facility Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date issueplus amounts used to pay fees, incur premiums, costs and expenses (including original issue discount) and accrued interest associated therewith; (iii) no Replacement Revolving Facility Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Facility Maturity Date for the Revolving Facility Commitments being replaced; (iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Revolving Facility Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the latest Revolving Facility Maturity Date in effect at the time of incurrence or are otherwise obtain reasonably acceptable to the Administrative Agent); (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) Replacement Revolving Facility Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral, and (vii) if such Replacement Revolving Facility is secured by Liens on the Collateral that rank junior in right of security to the Tranche A Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement. In addition, the Borrower may establish Replacement Revolving Facility Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Facility Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement Revolving Facility Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted Assignee hereunder) so long as (i) before and after giving effect to the establishment such Replacement Revolving Facility Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 4.03 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Facility Commitments, (ii) the remaining life to termination of such Replacement Revolving Facility Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Facility Commitments shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans, (iv) with respect to Replacement Revolving Loans secured by Liens on Collateral that rank junior in right of security to the Tranche A Revolving Loans, such Liens will be subject to a Permitted Junior Intercreditor Agreement, (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Facility Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Facility Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Facility Commitments) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Subsidiaries than, those, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent). Solely to the extent that an Issuing Bank or Swingline Lender is not a replacement issuing bank or replacement swingline lender, as the case may be, under a Replacement Revolving Facility, it is understood and agreed that such Issuing Bank or Swingline Lender shall not be required to provide issue any letters of credit or swingline loan under such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard Replacement Revolving Facility and, to the control extent it is necessary for such Issuing Bank or Swingline Lender to withdraw as an Issuing Bank or Swingline Lender, as the case may be, at the time of remedies) (the establishment of such notesReplacement Revolving Facility, “Permitted Pari Passu Secured Refinancing Debt”)such withdrawal shall be on terms and conditions reasonably satisfactory to such Issuing Bank or Swingline Lender, (B) secured Indebtedness in as the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loanscase may be, in its sole discretion. The Borrower agrees to reimburse each caseIssuing Bank or Swingline Lender, that are secured on a pari passu or subordinated basis with as the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”)case may be, in each casefull upon demand, in exchange for, for any reasonable and documented out-of-pocket cost or expense attributable to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)withdrawal.
Appears in 1 contract
Samples: Credit Agreement (Dollar Tree Inc)
Refinancing Amendments. (a) The Borrower may, at any time or from time to time after the Closing Date, by notice to the Administrative Agent (a “Refinancing Term Loan Request”), request (i) the establishment of one or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”), in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.65
(b) Each Refinancing Term Loan Request from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the proposed Refinanced Debt with respect thereto. Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may made on a Refinancing Closing Date (as defined below) shall be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. Refinancing Term Loans may be made by any existing Lender (but no existing Lender will have an obligation to make any Refinancing Term Commitment, nor will the Borrower have any obligation to approach any existing Lender to provide any Refinancing Term Commitment) or by any Additional Lender (each such Additional Lender providing such Refinancing Term Commitment or Refinancing Term Loan, a “Refinancing Term Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans to the extent such consent, if any, would be required under Section 11.6(b)(iii) for an assignment of Term Loans, to such Additional Lender.
(c) On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.152.14, (i) each Refinancing Term Lender of such Class shall make a Term Loan Loan, severally, but not jointly or jointly and severally with the other Refinancing Term Lenders, to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(cd) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount The terms, provisions and proposed terms documentation of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion Commitments of any Class shall be as agreed between the Borrower, the applicable Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making Lenders providing such Refinancing Term Loans if such consent would be required under or Refinancing Term Commitments and the Administrative Agent (in the case of the Administrative Agent, only with respect to terms and provisions not otherwise specified in this Section 10.07(b) for an assignment 2.14 that adversely affect the rights or obligations of the Administrative Agent), and except as otherwise set forth herein, to the extent not substantially identical to any Class of Term Loans to such Lender or Additional Lender; providedexisting on the Refinancing Closing Date, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and consistent with clauses (i) through (vi) below and otherwise shall be no more restrictive, taken as a whole (as applicabledetermined in good faith by the Borrower), than the terms applicable to the Class of Term Loans being Refinanced (except for (1) covenants or other provisions applicable only to periods after the Maturity Date (as of the applicable Refinancing Closing Date) or that are also added for the benefit of the Term Loans existing on such Refinancing Closing Date and (2) pricing, fees, rate floors, amortization or maturity). In any event each Refinancing Term Loan and Refinancing Term Commitment: (i) at the Borrower’s option, may rank pari passu or junior in right of payment with the Obligations under the then existing Term Loans, may be pari passu or junior in right of security with the Obligations under the then existing Term Loans (and, if junior in right of security, subject to an Acceptable Intercreditor Agreement) or may be unsecured; (ii) as of the Refinancing Closing Date, shall not mature earlier than the Maturity Date of the Refinanced Debt; (iii) shall be met, assuming that have a Weighted Average Life to Maturity not shorter than the making or provision remaining Weighted Average Life to Maturity of the Refinanced Debt on the date of Incurrence of such Refinancing Term Loans is (except by virtue of amortization or prepayment of the Refinanced Debt prior to the time of such Incurrence); (iv) shall have an assignment of applicable margin and, subject to clauses (d)(ii) and (d)(iii) above, amortization determined by the Borrower and the applicable Refinancing Term Lenders; (v) shall not be subject to any Guarantee by any Person other than a Loan Party and shall not include any borrower other than the Borrower and, to the extent secured, such Refinancing Term Loans shall not be secured by assets other than Collateral (except pursuant to such Person (each such existing Lender an escrow or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).similar arrangement with respect to the 66
(de) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such the Refinancing Amendment:
: (i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$$5,000,000 and shall be in an increment of C$$1,000,000 (provided that such amount may be less than C$$5,000,000 and not in an increment of C$$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is Debt); (ii) after giving effect to such Refinancing Term Commitments, (A) the representations and warranties made by the Borrower and each Guarantor contained herein and in the form other Loan Documents shall be true and correct in all material respects on and as of Term Loans),
(iii) such closing date, except to the extent reasonably requested by that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects, as of such earlier date (provided that, to the Administrative Agentextent any such representation and warranty is qualified by, or subject to, “materiality”, “Material Adverse Effect” or similar language, the receipt by the Administrative Agent (A) (I) customary officer’s certificates same shall be true and board resolutions and (II) customary opinions of counsel to the Loan Parties, correct in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agentall respects), ; (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, no Event of Default shall have occurred and be continuing; and (C) supplemental the Borrower shall have delivered on such closing date an Officers’ Certificate certifying the satisfaction of the conditions set forth in the foregoing clauses (A) and (B); and (iii) the principal amount (or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendmentsaccreted value, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the such Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on not exceed the principal amount (or accreted value, if applicable) of each Borrowing) so that each Lender under such Class will participate proportionately the Refinanced Debt (plus the amount of unpaid accrued or capitalized interest and premiums thereon (including make-whole premiums, prepayment premiums, tender premiums and amounts required to be paid in each then outstanding Borrowing of Term Loans under such Class in accordance connection with its Pro Rata Sharedefeasance and satisfaction and discharge), underwriting discounts, original issue discount, defeasance costs, fees (including upfront fees), commissions and expenses).
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(iif) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement established pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Refinancing Term Lender agreeing to provide providing such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, Refinancing Term Loans and the Administrative Agent. The Refinancing Amendment may, without the consent of any other LendersLoan Party, agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.152.14, including, if applicable, amendments as deemed necessary by the Administrative Agent in its reasonable judgment to effect any lien subordination and associated rights of the applicable Lenders to the extent any Refinancing Term Loans are to rank junior in right of security. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, substantially concurrently, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (U.S. Concrete, Inc.)
Refinancing Amendments. (a) The Borrower may, at any time On one or from time to time more occasions after the Closing Date, by notice to the Administrative Agent (a “Refinancing Loan Request”)Borrowers may obtain, request (i) the establishment of one from any Lender or more new Classes of Term Loans under this Agreement (any such new Class, “New Refinancing Term Commitments”) other bank or (ii) increases to one or more existing Classes of term loans under this Agreement (any such increase to an existing Class, collectively with New Refinancing Term Commitments, “Refinancing Term Commitments”)financial institution that agrees, in each caseits sole discretion, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected by the Borrower, provide any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class portion of Refinancing Term Loans for all purposes of this Agreement. On any or Other Revolving Commitments pursuant to a Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions Amendment in accordance with this Section 2.152.28 (each, (i) each an “Additional Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term LoanLender”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent Agent, the Swing Line Lender and each Issuing Bank shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Refinancing Lender’s making such Refinancing Term Loans or providing such Other Revolving Commitments to the extent such consent, if such consent any, would be required under Section 10.07(b9.06(b) for an assignment of Loans or Revolving Commitments, as applicable, to such Lender or Additional Refinancing Lender), Credit Agreement Refinancing Indebtedness in respect of all or any portion of Term Loans or Revolving Loans (or unused Revolving Commitments) then outstanding under this Agreement, in the form of Refinancing Term Loans, Refinancing Term Commitments, Other Revolving Loans or Other Revolving Commitments pursuant to a Refinancing Amendment; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such Refinancing Term Loans is an assignment of such Refinancing Term Loans to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, shall be subject to the satisfaction on the date thereof (a “Refinancing Facility Closing Date”) of each of the following conditions, together with any other conditions set forth in such Refinancing Amendmentterms are satisfied:
(i) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 (provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 if such amount is equal to the entire outstanding principal amount of Refinanced Debt that is in the form of Term Loans),
(iii) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or on a less than a pro rata basis (but not on a greater than a pro rata basis except basis) as among the various Classes of Term Loans (in accordance with the case of a prepayment under Section 2.05(b)(iii)(B)respective outstanding principal amounts thereof) in any voluntary or mandatory repayments or prepayments of principal of Term Loans hereunder,, as specified in the applicable Refinancing Amendment;
(viiii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest borrowing and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt repayment (except for (1A) covenants or other provisions applicable only to periods after the Latest Maturity Date payments of interest and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments fees at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term different rates on Other Revolving Commitments (and any Term Loans made pursuant thereto), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans in exchange for, or to extend, renew, replace, repurchase, retire or refinance, and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”related outstandings), (B) secured Indebtedness in repayments required upon the form maturity date of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”).Other Revolving Commitments and
Appears in 1 contract
Samples: Credit Agreement (Compass Minerals International Inc)
Refinancing Amendments. (a) The Borrower may, at At any time or from time to time after the Closing Date, by notice the Borrower may obtain from any existing Lender or any other Person reasonably satisfactory to the Administrative Agent Borrower (a any such existing Lender or other Person being called an “Additional Refinancing Loan RequestLender”), request (i) Credit Agreement Refinancing Indebtedness in respect of all or any portion of the establishment of one or more new Classes of Term Loans then outstanding under this Agreement (which will be deemed to include any such new Class, “New Refinancing then outstanding Other Term Loans constituting Term Loans) in the form of Other Term Loans or Other Term Commitments”, in each case pursuant to a Refinancing Amendment; provided that (i) such Credit Agreement Refinancing Indebtedness shall rank pari passu or junior in right of payment and of security with the other Loans and Commitments hereunder, (ii) increases to one or more existing Classes such Credit Agreement Refinancing Indebtedness shall have such pricing, interest, fees, premiums and optional prepayment and redemption terms as may be agreed by Holdco, the Borrower and the Additional Refinancing Lenders thereof, (iii) such Credit Agreement Refinancing Indebtedness shall only be secured by assets consisting of term loans under this Collateral, (iv) the covenants, events of default and guarantees of such Credit Agreement Refinancing Indebtedness (any such increase to an existing Classother than pricing, collectively with New Refinancing Term Commitmentsinterest, “Refinancing Term Commitments”fees, premiums and optional prepayment), if not consistent with the terms of the Term Loans, shall not be materially more restrictive to the Loan Parties (as determined in each case, established in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, as selected good faith by the Borrower, any one or more of the existing Class or Classes of Loans or Commitments (with respect to a particular Refinancing Term Commitment or Refinancing Term Loan, such existing Loans or Commitments, “Refinanced Debt”), whereupon when taken as a whole, than the Administrative Agent shall promptly deliver a copy of each such notice to each of the Lenders.
(b) Any Refinancing Term Loans made pursuant to New Refinancing Term Commitments may be designated a separate Class of Refinancing Term Loans for all purposes of this Agreement. On any Refinancing Facility Closing Date on which any Refinancing Term Commitments of any Class are effected, subject to the satisfaction of the terms and conditions in this Section 2.15, (i) each Refinancing Term Lender of such Class shall make a Term Loan to the Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of such Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(c) Each Refinancing Loan Request from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Refinancing Term Loans and identify the Refinanced Debt with respect thereto. Refinancing Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any portion of any Refinancing Term Loan) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such Refinancing Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide Refinancing Term Loans unless (x) the requirements Lenders of Sections 10.07(hthe Term Loans receive the benefit of such more restrictive terms or (y) any such provisions apply after the Term Loan Maturity Date and (iv) (as applicable) shall be metif such Credit Agreement Refinancing Indebtedness is secured on a junior basis to the Initial Term Loans, assuming that the making or provision Senior Representative acting on behalf of the holders of such Refinancing Term Loans is an assignment of such Refinancing Term Loans Indebtedness shall have become party to such Person (each such existing Lender or Additional Lender providing such Commitment or Loan, a “Refinancing Term Lender” and, collectively, “Refinancing Lenders”).
(d) the Intercreditor Agreement. The effectiveness of any Refinancing Amendment, and the Refinancing Term Commitments thereunder, Amendment shall be subject to such express conditions as are mutually agreed with the satisfaction on the date thereof participating Additional Refinancing Lenders. Each Class of Credit Agreement Refinancing Indebtedness (a “Refinancing Facility Closing Date”) of each other than in connection with an extension of the following conditions, together with any other conditions set forth in such Refinancing Amendment:
(imaturity of Term Loans) after giving effect to such Refinancing Term Commitments, the conditions of Sections 4.02(a) and (b) incurred under this Section 2.21 shall be satisfied (it being understood that all references to “the date in an integral multiple of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the applicable Refinancing Facility Closing Date),
(ii) each Refinancing Term Commitment shall $1,000,000 and be in an aggregate principal amount that is not less than C$5,000,000 and shall be in an increment of C$1,000,000 ($10,000,000, provided that such amount may be less than C$5,000,000 and not in an increment of C$1,000,000 $10,000,000 if such amount is equal to represents all the entire outstanding remaining availability under the aggregate principal amount of Refinanced Debt that is in Credit Agreement Refinancing Indebtedness set forth above. The Administrative Agent shall promptly notify each Lender as to the form effectiveness of Term Loans),
(iii) each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent (A) (I) customary officer’s certificates and board resolutions and (II) customary opinions of counsel but only to the Loan Parties, in each case, consistent with those delivered on extent) necessary or reasonably advisable to reflect the Closing Date (other than changes to 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), (B) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, existence and (C) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent (including Mortgage amendments, if applicable) in order to ensure that any Refinancing Term Commitment is provided with the benefit of the applicable Loan Documents, and
(iv) the Refinancing Term Loans made pursuant to any increase in any existing Class of Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under the respective Class so incurred on a pro rata basis (based on the principal amount of each Borrowing) so that each Lender under such Class will participate proportionately in each then outstanding Borrowing of Term Loans under such Class in accordance with its Pro Rata Share.
(e) The terms and provisions of the Refinancing Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such Refinancing Term Commitments; provided, that:
(i) such Refinancing Term Commitments shall (x) rank pari passu or junior in right of payment and shall be unsecured or rank pari passu or junior in right of security with all Term Loans, Permitted Pari Passu Secured Refinancing Debt and (to the extent secured by all or a portion of the Collateral on a pari passu basis with any of the foregoing) any Incremental Equivalent Debt and (y) may not be (I) if secured, secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor or (III) secured by security documentation that is materially more restrictive to the Borrower and the Guarantors than the Loan Documents,
(ii) Refinancing Term Loans shall not mature earlier than the Maturity Date of the applicable Refinanced Debt as then in effect,
(iii) Refinancing Term Loans shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the applicable Refinanced Debt (prior to any extension thereto),
(iv) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule applicable to any Refinancing Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that a currency other than Canadian Dollars and U.S. Dollars shall be subject to the consent of the Administrative Agent (not to be unreasonably withheld),
(v) the interest rate (including margin and floors) applicable to any Refinancing Term Loans will be determined by the Borrower and the Lenders providing such Refinancing Term Loans,
(vi) the Refinancing Term Loans may provide for the ability to participate on a pro rata basis, greater than or less than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) [reserved]
(viii) [reserved],
(ix) Refinancing Term Loans shall not have a greater principal amount than the principal amount of the applicable Refinanced Debt plus any accrued but unpaid interest and fees on such Refinanced Debt plus existing commitments unutilized under such Refinanced Debt to the extent permanently terminated at the time of incurrence of such new Indebtedness plus the amount of any premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any reasonable fees and expenses Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including OID, upfront fees or similar fees) incurred in connection with the issuance of such Refinancing Term Loans,
(x) [reserved],
(xi) except as set forth above, the material terms and conditions of any such Refinancing Term Commitments (and amendments necessary to treat the Loans in respect thereof) shall be (taken and Commitments subject thereto as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the Refinancing Lenders providing such Refinancing Term Commitments than those applicable to the applicable Refinanced Debt (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms) unless such terms and conditions reflect market terms and conditions for such Refinancing Term Commitments at the time of incurrence or issuance thereof (in each case, as determined by the Borrower in good faith); provided, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and any Other Term Loans made pursuant theretoand/or Other Term Commitments), and
(xii) notwithstanding the foregoing, Refinancing Term Commitments of the kind described in Section 2.15(a)(A)(ii) (and the Refinancing Loans made pursuant thereto) shall form part of the same Class as, and have identical terms to, the applicable Class of Term Loans to which they apply.
(f) Commitments in respect of Refinancing Term Loans shall become Commitments under this Agreement pursuant to an amendment (a “Refinancing Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. The Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary necessary, or reasonably advisable or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. This Section 2.15. The Borrower will use the proceeds, if any, of the Refinancing Term Loans 2.21 shall supersede any provisions in exchange for, or to extend, renew, replace, repurchase, retire or refinance, Section 2.18 and shall permanently terminate applicable commitments under, the applicable Refinanced Debt, in each case, in accordance with Section 2.05(b)(iii)(B).
(g) [reserved].
(h) Any New Refinancing Term Commitment shall be designated a separate Class of Term Loans for all purposes of this Agreement.
(i) In lieu of incurring any Refinancing Term Loans, the Borrower may at any time or from time to time after the Closing Date issue, incur or otherwise obtain (it being understood that no Lender shall be required to provide any such Indebtedness) (A) secured Indebtedness under a separate agreement in the form of one or more series of senior secured notes that are secured on a pari passu basis with the Obligations (but without regard 9.02 to the control of remedies) (such notes, “Permitted Pari Passu Secured Refinancing Debt”), (B) secured Indebtedness in the form of one or more series of second lien (or other junior lien) secured notes or second lien (or other junior lien) secured loans, in each case, that are secured on a pari passu or subordinated basis with the Obligations (such notes or loans, “Permitted Junior Secured Refinancing Debt”) and (C) senior unsecured or subordinated unsecured Indebtedness in the form of one or more series of senior unsecured or subordinated unsecured notes or loans (such notes or loans, “Permitted Unsecured Refinancing Debt” and together with Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Secured Refinancing Debt, “Refinancing Equivalent Debt”), in each case, in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or in part, any existing Class or Classes of Loans (such Loans, “Refinanced Loans”)contrary.
Appears in 1 contract
