Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent). Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (Clear Channel Communications Inc), Credit Agreement (Clear Channel Communications Inc)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default under Section 8.01(a) or Event of Default shall exist, exist and (ii) at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default under Section 8.01(a) or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)exist. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 50,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)1,000,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term LoansB-1 Loans made on the Closing Date, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term B-1 Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature made on the Maturity Closing Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term B-1 Loans made on the Closing Date (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the such Term B-1 Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term B-1 Loans (without giving effect to any prior Extensions thereof) made on the Closing Date (except by virtue of amortization or prepayment of the such Term B-1 Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (Avaya Inc), Credit Agreement (Avaya Inc)
Incremental Credit Extensions. (a) The Parent Borrower Company may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness Company shall be in compliance with each of any such Incremental Amendment and at the time any covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term Loan is made (after giving effect thereto)or Revolving Commitment Increase and the last day of the most recent Test Period, the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating Company for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 50,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount750,000,000 and the Receivables Facility Shortfall Amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior as reduced from time to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) time; provided that the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have Revolving Commitment Increases shall not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)exceed $750,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower Company and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower Company pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have an obligation the right to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 2.15 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent BorrowerCompany, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerCompany, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall Company will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 2 contracts
Sources: Second Refinancing and Incremental Amendment (Sungard Capital Corp Ii), Credit Agreement (Sungard Data Systems Inc)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ai) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (bii) one or more increases in the amount of the Dollar any Class of Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (iA) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiB) upon the effectiveness Borrower shall be in compliance with each of any such Incremental Amendment and at the time any covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term Loan is made (after giving effect thereto)or Revolving Commitment Increase and the last day of the most recent Test Period, the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than (x) for the avoidance of doubt those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.17 and (y) Replacement Revolving Commitments) shall not exceed (A) the sum of (ix) $1,500,000,000 (such amount, the “Initial Incremental Amount”) 500,000,000 plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal payments made in respect of the Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing as of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). Facility Closing Date.
(b) The Incremental Term Loans (ai) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (bii) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans, (iii) shall not have a weighted average life to maturity that is shorter than the weighted average life to maturity with respect to the Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (civ) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (iA) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (iiB) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans .
(without giving effect to any prior Extensions thereofc) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have the right, but not an obligation obligation, to provide a portion of any Revolving Commitment IncreaseIncrease (other than any Replacement Revolving Commitment), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent and the Borrower shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Increases, unless it so agrees.
(d) Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (xi) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Dollar Letters of Credit and (iiB) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yii) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(be) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (West Corp), Credit Agreement (West Customer Management Group, LLC)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent). Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)Agreement. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except or the Tranche A Term Loans in the case of an any increase of an existing Class of Loans or Commitments, in which case such Incremental the Tranche A Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increasedLoans) and (c) shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may only be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)date. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (Clear Channel Communications Inc), Credit Agreement (C C Media Holdings Inc)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory Classes or additions to the Administrative Agent, an increase of an existing tranche Class of Term Loans (the “Incremental Term Loans” and any such Class, an “Incremental Series”), ) or (b) one or more increases in the amount of the Dollar Tranche 2 Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in on the amount of same terms as the Alternative Currency Tranche 2 Revolving Credit Commitments Facility (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, except for interest rate margins and commitment fees) (a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant covenants set forth in Section 7.14 7.11 determined on a Pro Forma Basis as of the date of the most recently ended Test Period (or, if no Test Period cited in Section 7.11 has passed, the covenants in Section 7.11 for the first Test Period then cited in such Section shall be satisfied as of the last ended calculated on a pro forma basis for four quarters ended), in each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or any borrowings under any such Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount $25,000,000 and shall be in an increment of $100,000,000 1,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases Increases, when aggregated with the amount of Permitted Notes issued in reliance on Section 7.03(s)(i) and Section 7.03(s)(ii), shall not exceed (A) the sum of (ix) $1,500,000,000 150,000,000 (such amount, the “Initial Incremental Amount”); provided that during the sixty (60) consecutive day period beginning on the Amendment No. 1 Effective Date (the “Incremental Increase Period”) the Borrower may incur a Revolving Commitment Increase in an amount not to exceed $50.0 million and an increase to the Term A Loan in an amount not to exceed $50.0 million (the “Term A Loan Increase”), in each case without reducing the amount available for future Incremental Term Loans or Revolving Commitment Increases under the Initial Incremental Amount, so long as, in the case of any Term A Loan Increase, the Net Proceeds therefrom shall be used to repay Term B Loans pursuant to Section 2.05(b)(xi) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Borrower may incur additional Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant and/or Revolving Commitment Increases (a “Ratio-Based Incremental Facility”) so long as the Borrower’s First Lien Secured Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted delivered pursuant to Section 7.03(i6.01(a) or (b), but excluding as applicable (or, if no Test Period has passed, as of the principal last four quarters ended), in each case, as if such Ratio-Based Incremental Facility (and Revolving Credit Loans in an amount equal to the full amount of any such refinancing indebtedness represented by unpaid accrued interest and premium Revolving Commitment Increase) had been outstanding on the indebtedness being refinanced plus other reasonable amounts paidlast day of such four quarter period, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)shall not exceed 2.75 to 1.00. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche Term B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitmentsany Term A Loan Increase, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and with respect to the Term A Loans), (c) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of then-existing Term B Loans (except in the case of any Term A Loan Increase, which shall have the same weighted average life to maturity as that of the Term A Loans) and (d) the Applicable Rate for the Incremental Term Loan, and subject to clause (c) above, amortization for the Incremental Term Loans shall be treated substantially determined by the Borrower and the applicable new Lenders (except that in the case of any Term A Loan Increase, such Applicable Rate and amortization shall be the same as that of the Tranche B Term A Loans); provided, however, that if any such additional Incremental Term Loans are requested prior to March 30, 2014, (in each casei) the interest rate margins for the Incremental Term Loans shall not be greater than the highest interest rate margins that may, including under any circumstances, be payable with respect to mandatory and voluntary prepaymentsTerm B Loans plus 50 basis points (unless the interest rate margins applicable to the Term B Loans are increased to the extent necessary to achieve the foregoing), provided that (ii) solely for purposes of the foregoing clause (i), the interest rate margins applicable to any Term Loans or Incremental Term Loans shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower generally to the Lenders providing such Term Loans or such Incremental Term Loans based on an assumed four-year life to maturity and (iii) if the lowest permissible Eurocurrency Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loans, the difference between such “floor” and 1.00%, in the case of Eurocurrency Rate Incremental Term Loans, or 2.00%, in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of clause (i) above; provided that except as provided above, the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable satisfactory to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence)Agent. Each notice from the Parent Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no but each existing Term Lender will not have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a or any portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent Agent, L/C Issuer and/or Swing Line Lender, as applicable, shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if to the extent any such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of Borrower, or any other Lenders Loan Party, Agents or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this SectionSection 2.14. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (xa) if the increase relates to the Revolving Credit Facility, each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each each, a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumedassumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans under the applicable Facility outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) . This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Incremental Credit Extensions. (a) The Parent Borrower Company may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans denominated in Dollars (the “Incremental U.S. Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments on the same terms and conditions as are then applicable to the Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) both at the time of any such request and upon the effectiveness of any Incremental U.S. Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental U.S. Term Loan is made or any such Revolving Commitment Increase becomes effective (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower Company shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated 7.10 determined on a pro forma basis for Pro Forma Basis as of the date of such Incremental Amendment and/or Incremental U.S. Term Loan in accordance with Section 1.10 (or Revolving Commitment Increase and a certificate from the Chief Financial Officer last day of the Parent Borrower demonstrating most recent Test Period, in each case, as if such Incremental U.S. Term Loans or Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarter of the Company for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental U.S. Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount Dollar Amount that is not less than a Dollar Amount of $100,000,000 50,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount Dollar Amount of the Incremental U.S. Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)200,000,000. The Incremental U.S. Term Loans and any Revolving Credit Exposure under any such Revolving Commitment Increase (a) shall rank pari passu in right of payment and of security with the other Revolving Credit Loans Exposure and the U.S. Term Loans, (b) in the case of Incremental U.S. Term Loans, shall not mature earlier than the Maturity Date with respect to the Tranche B U.S. Term Loans Loans, (without giving effect to any prior Extensions thereofc) (except in the case of an increase Incremental U.S. Term Loans, shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity with respect to the U.S. Term Loans, (d) in the case of an existing Class of Loans or CommitmentsIncremental U.S. Term Loans, in which case will accrue interest at rates determined by the Company and the lenders providing such Incremental U.S. Term Loan Loans, which rates may be higher or Revolving Commitment Increase shall mature on lower than the Maturity Date of such Class being increased) rates applicable to the U.S. Term Loans, and (ce) in the case of Incremental U.S. Term Loans, except as set forth above, shall be treated substantially the same as as, or less favorably to the Tranche B lenders thereof than, the U.S. Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental U.S. Term Loans may be materially different from those of the U.S. Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) subject to clauses (b), (c) and (d) above, the interest rates rates, maturity and amortization schedule applicable to the Incremental U.S. Term Loans shall be determined by the Parent Borrower Company and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower Company pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental U.S. Term Loans or Revolving Commitment Increases. Incremental U.S. Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , in each case as designated by the Company, provided that the Administrative Agent Agent, each L/C Issuer and the Swing Line Lender shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental U.S. Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental U.S. Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent BorrowerCompany, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerCompany, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall Company will use the proceeds of the Incremental U.S. Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of provide any Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental U.S. Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) The Company may from time to time designate any Foreign Subsidiary organized under the Laws of Australia, Canada or the United Kingdom as an additional Overseas Borrower for purposes of this Agreement by delivering written notice thereof to the Administrative Agent duly executed on behalf of such Foreign Subsidiary and the Company. Any such Overseas Borrower organized under the laws of Australia may, on any one date after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request a tranche of term loans denominated in Australian Dollars, any such Overseas Borrower organized under the laws of Canada may, on any one date after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request a tranche of term loans denominated in Canadian Dollars, and any such Overseas Borrower organized under the laws of the United Kingdom may, on any one date after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request a tranche of term loans denominated in Sterling or Euros (any and all such term loans, the “Incremental Overseas Term Loans”); provided that both at the time of any such request and upon the effectiveness of any Incremental Overseas Amendment referred to below, no Default or Event of Default shall exist and at the time that any such Incremental Overseas Term Loan is made (and after giving effect thereto) no Default or Event of Default shall exist. Each tranche of Incremental Overseas Term Loans shall be in an aggregate initial Dollar Amount of not more than $150,000,000 as of the relevant Incremental Overseas Facility Closing Date; provided that the aggregate initial Dollar Amount of the Incremental Overseas Term Loans shall not exceed $300,000,000. The Incremental Overseas Term Loans (a) shall rank pari passu in right of payment and of security with the U.S. Term Loans, but may have additional security or Guarantees or limits on security or Guarantees to the extent required by the Collateral and Guarantee Requirement, (b) shall not mature earlier than the Maturity Date with respect to the U.S. Term Loans, (c) shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity with respect to the U.S. Term Loans, (d) will accrue interest at rates determined by the applicable Overseas Borrower and the lenders providing such Incremental Overseas Term Loans, which rates may be higher or lower than the rates applicable to the U.S. Term Loans, and (e) except as set forth above, shall be treated substantially the same as, or less favorably to the lenders thereof than, the U.S. Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Overseas Term Loans may be materially different from those of the U.S. Term Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) subject to clauses (b), (c) and (d) above, the interest rates, maturity and amortization schedule applicable to the Incremental Overseas Term Loans shall be determined by the applicable Overseas Borrower and the lenders thereof. Each notice from an Overseas Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Overseas Term Loans. Incremental Overseas Term Loans may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Overseas Lender”), in each case as designated by the applicable Overseas Borrower, provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Overseas Lender’s making such Incremental Overseas Term Loans if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Overseas Lender. Commitments in respect of Incremental Overseas Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Overseas Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Company, the applicable Overseas Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Overseas Lender, if any, and the Administrative Agent. The Incremental Overseas 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 applicable Overseas Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Overseas Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Overseas Facility Closing Date”) of each of the conditions set forth in Section 4.03 and such other conditions as the parties thereto shall agree. The proceeds of the Incremental Overseas Term Loans shall be applied to the prepayment of the U.S. Term Loans pursuant to Section 2.05(b)(iii). No Lender shall be obligated to provide any Incremental Overseas Term Loans unless it so agrees. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this Section 2.14(b).
(c) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (Readers Digest Association Inc), Credit Agreement (Direct Holdings Libraries Inc.)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ai) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (bii) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (iA) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiB) upon the effectiveness Borrower shall be in compliance with each of any such Incremental Amendment and at the time any covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term Loan is made (after giving effect thereto)or Revolving Commitment Increase and the last day of the most recent Test Period, the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (ix) $1,500,000,000 (such amount, the “Initial Incremental Amount”) 500,000,000 plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal payments made in respect of the Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing as of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). Facility Closing Date.
(b) The Incremental Term Loans (ai) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (bii) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans, (iii) shall not have a weighted average life to maturity that is shorter than the weighted average life to maturity with respect to the Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (civ) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (iA) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (iiB) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans .
(without giving effect to any prior Extensions thereofc) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have the right, but not an obligation obligation, to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent and the Borrower shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Increases, unless it so agrees.
(d) Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (xi) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Dollar Letters of Credit and (iiB) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yii) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(be) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (West Corp), Credit Agreement (West Corp)
Incremental Credit Extensions. (a) The Parent Borrower may may, at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided provided, that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall exist and (iii) exist; provided that, with respect to any Incremental Term Loans the proceeds of which are to be used primarily to fund a Permitted Acquisition or other acquisition not prohibited hereunder the consummation of which is not conditioned on the availability of third-party financing substantially concurrently upon the effectiveness receipt thereof, the absence of an Event of Default (other than a Specified Event of Default with respect to any such Incremental Amendment and at Borrower) shall not constitute a condition to the time any issuance or incurrence of such Incremental Term Loan is made Loans, and (ii) Parent and its Restricted Subsidiaries shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or Section 6.01(b) (which, for the avoidance of doubt, shall be calculated after giving effect thereto), to any acquisition consummated concurrently therewith or to be consummated using the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for proceeds of such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (Facility and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agentassuming any Revolving Commitment Increase is fully drawn). Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 50 million (provided provided, that such amount may be less than a Dollar Amount of $100,000,000 50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amountother than, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date avoidance of determination and calculated on a pro forma basis doubt, those established in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount respect of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Extended Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Upon each increase in (A) the Dollar Extended Revolving Credit Commitments pursuant to this Section 2.14, (x2.16) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to exceed the transactions effected pursuant to the immediately preceding sentenceMaximum Incremental Facilities Amount.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Communications Sales & Leasing, Inc.)
Incremental Credit Extensions. (a) The Parent Borrower Company may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness Company shall be in compliance with each of any such Incremental Amendment and at the time any covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term Loan is made (after giving effect thereto)or Revolving Commitment Increase and the last day of the most recent Test Period, the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating Company for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 20,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 20,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum $150,000,000. Each tranche of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or CommitmentsLoans, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity then in effect for the Term Loans and (d) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), ; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower Company and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower Company pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have an obligation the right, but no obligation, to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent and each Principal L/C Issuer (in the case of a Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent BorrowerCompany, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerCompany, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall Company will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches Classes of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Additional Credit Extension Amendment referred to belowbelow (an “Incremental Effective Date”), no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)exist. Each tranche Class of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal Revolving Credit Commitments after giving effect to any Revolving Commitment Increase (and any concurrent reduction in the Revolving Credit Commitments) shall not exceed the Revolving Credit Commitment Cap and (y) except in the case of Refinancing Incremental Term Loans, on a Pro Forma Basis and after giving effect to the borrowing of all such Incremental Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since Revolving Commitment Increases (assuming for such calculation that any Revolving Commitment Increases are fully drawn), the Closing Date that have not been refinanced with Indebtedness under Senior Secured Leverage Ratio (excluding from the calculation thereof for this Agreement minus (B) purpose the cash proceeds of the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing Term Loans that are the subject of such Permitted Alternative Additional Credit Extension Amendment and other Indebtedness secured by a Lien permitted by Section 7.01(aa) incurred on such Incremental Facilities Indebtedness permitted pursuant Effective Date) for the most recently ended Test Period shall be less than or equal to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)3.75 to 1.0. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit then existing Term Loans and the Term Loans(including with respect to all provisions of Section 8.03), (b) shall not mature earlier than the Maturity Date with respect to any then outstanding Term Loans, (c) shall not have a Weighted Average Life to Maturity that is less than the Tranche B remaining Weighted Average Life to Maturity of the Class of Term Loans (without giving effect with the longest Weighted Average Life to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (cd) shall be treated substantially the same as the Tranche B other then outstanding Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; , subject to the limitation set forth in clause (c) above, provided further, that in the event that the All-In Yield of any Incremental Term Loans, other than Refinancing Incremental Term Loans, is more than 50 basis points greater than the All-In Yield of the Term B-2 Loans, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the All-In Yield for such Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter is no more than that of 50 basis points greater than the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of All-In Yield for the Term Loans prior to the time of such incurrence)B-2 Loans. Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution approved by the Borrower (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that each L/C Issuer (in the case of a Revolving Commitment Increase) and the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Additional Credit Extension Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by Holdings, the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, the applicable L/C Issuer (in the case of an increase of a Revolving Commitment Increase) and the Administrative Agent. The Incremental Additional Credit Extension Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Additional Credit Extension Amendment for an Incremental Term Loan, the borrowing under) any Incremental Additional Credit Extension Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Additional Credit Extension Amendment and borrowing of the applicable Incremental AmendmentTerm Loan) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases and Letters of Credit issued pursuant to the Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (xa) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment its Pro Rata Share and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ai) one or more additional tranches of first-lien term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental First-Lien Term Loans”)) or, (bii) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Incremental Term LoansFirst-Lien Term Loans, a “First-Lien Credit Increase”) or (iii) one or more additional tranches of second-lien term loans (the “Incremental Second-Lien Term Loans” and, together with any First-Lien Credit Increase, a “Revolving Commitment Credit Increase”); provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent). Each tranche of Incremental Term Loans and each Revolving Commitment Credit Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided or such lower amount that such amount may be less than a Dollar Amount of $100,000,000 if such amount either (A) represents all remaining availability under the limit set forth in the next sentencesentence or (B) is reasonably acceptable to the Administrative Agent). Notwithstanding anything to the contrary herein, (x) the aggregate amount of the Incremental Credit IncreasesIncremental Second-Lien Term Loans and incurred after the Revolving Commitment Increases First Amendment Effective Date shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, greater of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination $500,000,000 or (y)$50,000,000 and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing First-Lien Credit Increases incurred after the First Amendment Effective Date that have shall not been refinanced with Indebtedness under this Agreement minus (B) exceed the aggregate maximum amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing at the time of such Permitted Alternative proposed Credit Increase that could be incurred such that after giving pro forma effect to such First-Lien Credit Increase, the Senior Secured Net Leverage Ratio does not exceed 5.00:1.00 as of the last date for which Section 5.04 Financials have been delivered to the Administrative Agent. Each Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental First-Lien Term Loans Loan (a1) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the then-existingFirst-Lien Term Loans and shall rank pari passu in right of payment and senior in right of security to the Second-Lien Term Loans, (b2) shall not mature earlier than the First-Lien Term Loan Maturity Date with respect Date, (3) shall have a Weighted Average Life to Maturity not shorter than the Tranche B remaining Weighted Average Life to Maturity of the then-existingFirst-Lien Term Loans (without giving effect to annual amortization on any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental First-Lien Term Loan or Revolving Commitment Increase shall mature on FacilityLoans not in excess of 1% of the Maturity Date of such Class being increased) and principal amount thereof), (c4) shall be treated substantially in the same manner as the Tranche B First-Lien Term Loans (in each case, including with respect to mandatory and voluntary prepaymentsfor purposes of Section 2.13(e), provided that Section 2.13(g) and Section 2.17(b), (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii5) the interest rates and amortization schedule applicable to the any Incremental First-Lien Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided Lenders thereunder, and (6) subject to the above, any terms for Incremental First-Lien Term Loans that are inconsistent with the Incremental then-existing with the then-existing First-Lien Term Loans shall be reasonably satisfactory to the Administrative Agent. Each Incremental Second-Lien Term Loan (1) shall rank pari passu in right of payment and of security with the Second-Lien Term Loans and shall rank pari passu in right of payment and junior in right of security to the Revolving Credit Loans and the First-Lien Term Loans, (2) shall not mature earlier than the Second-Lien Term Loan Maturity Date, (3) shall have a Weighted Average Life to Maturity not shorter than that the remaining Weighted Average Life to Maturity of the Tranche B Second-Lien Term Loans, (4) shall be treated in the same manner as the Second-Lien Term Loans for purposes of Section 2.13(e), Section 2.13(g) and Section 2.17(b), (without giving effect 5) the interest rates and amortization schedule applicable to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Incremental Second-Lien Term Loans prior shall be determined by the Borrower and the Lenders thereunder, and (6) subject to the time of such incurrence)above, any terms for Incremental Second-Lien Term Loans that are inconsistent with the then-existing Second-Lien Term Loans shall be reasonably satisfactory to the Administrative Agent. Each notice from the Parent Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Credit Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent relevant Persons under Section 9.04(b) shall have consented (such consent in each case, not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases Increases, if such consent would be required under Section 10.07(b9.04(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. The Arrangers agree, upon the request of the Borrower and pursuant to mutually satisfactory engagement and compensation arrangements, to use their commercially reasonable efforts to obtain any Additional Lenders to make any such requested Incremental Term Loans or Revolving Commitment Increases; provided that the Arrangers’ agreement to use such efforts does not constitute a commitment to provide any such requested Incremental Term Loans or Revolving Commitment Increases.
(b) Commitments in respect of Incremental Term Loans and Revolving Commitment Credit Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect effectuate the provisions of this SectionSection 2.24. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction (or waived) on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 4.01 (it being understood that all references to “the date of such Credit ExtensionEvent” or similar language in such Section 4.02 4.01 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree). The Parent Borrower shall may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases . No Lender shall be used obligated to permanently repay or prepay such Indebtedness)provide any Credit Increases unless it so agrees in its sole discretion. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each each, a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without -(97-) further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Swingline Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 2.16.
(c) The Loans and (B) the Alternative Currency Revolving Credit Commitments established pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically paragraph shall constitute Loans and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”)Commitments under, and each such Alternative Currency Revolving Commitment Increase Lender will automatically shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without further act limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, perfected under the UCC or otherwise after giving effect to each the establishment of any such deemed assignment and assumption Class of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each Term Loans or any such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit new Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(bd) This Section 2.14 2.24 shall supersede any provisions in Section 2.13 2.18 or 10.01 9.08 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ai) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (bii) one or more increases in the amount of the Dollar any Class of Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (iA) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiB) upon the effectiveness Borrower shall be in compliance with each of any such Incremental Amendment and at the time any covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term Loan is made (after giving effect thereto)or Revolving Commitment Increase and the last day of the most recent Test Period, the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans (which, for this purpose, shall include Term B-6 Loans but shall not include Term B-7 Loans or, Term B-8 Loans, Term B-9 Loans or Term B-10 Loans) and the Revolving Commitment Increases (other than (x) for the avoidance of doubt those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.17 and (y) Replacement Revolving Commitments) shall not exceed (A) the sum of (ix) $1,500,000,000 (such amount, the “Initial Incremental Amount”) 500,000,000 plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal payments made in respect of the Term Loans as of such Incremental Facility Closing Date (including, in the case of Term B-6 Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since incurred on the Closing First Amendment Effective Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i)only, but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection Term B-2 Loans repaid concurrently with the modificationincurrence of Term B-6 Loans on such date and excluding (I) prepayments of Term B-4 Loans, refinancing, refunding, renewal Term B-5 Loans and Term B-6 Loans with the proceeds of Term B-7 Loans or extension thereofTerm B-8 Loans and (II) prepayments of Term B-7 Loans and Term B-8 Loans with the proceeds of Term B-9 Loans or Term B-10 Loans). .
(b) The Incremental Term Loans (ai) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (bii) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans, (iii) shall not have a weighted average life to maturity that is shorter than the weighted average life to maturity with respect to the Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (civ) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (iA) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (iiB) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans .
(without giving effect to any prior Extensions thereofc) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have the right, but not an obligation obligation, to provide a portion of any Revolving Commitment IncreaseIncrease (other than any Replacement Revolving Commitment), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent and the Borrower shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Increases, unless it so agrees.
(d) Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (xi) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Dollar Letters of Credit and (iiB) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yii) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(be) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (West Corp)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Datedate the Term Loans are paid in full in cash (including principal, interest, fees and expenses), by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Revolving Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), (b) one or more increases in the aggregate Revolving Commitments (the “Incremental Revolving Commitments”), provided that any such request shall be conditioned upon the following:
(i) the aggregate amount of Incremental Revolving Commitments that may be requested by the Dollar Borrower may not exceed $25,000,000;
(ii) each notice delivered by the Borrower to the Administrative Agent shall specify (A) the date on which Borrower proposes that the Incremental Revolving Credit Commitments shall be effective, which shall be a date not less than 3 Business Days nor more than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (each such increase, a “Dollar Revolving Commitment Increase”B) or (c) one or more increases in the amount of the Alternative Currency Incremental Revolving Credit Commitments being requested (each which requests shall be in minimum increments of $10,000,000 and a minimum amount of $5,000,000)
(iii) at the time of any such increaserequest, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) upon after giving effect to the effectiveness of any Incremental Amendment referred to belowbelow and after giving effect to the establishment of the Incremental Revolving Commitments, no Default or Event of Default shall exist, have occurred and be continuing or would result therefrom; and
(iiiv) at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant financial covenants set forth in Section 7.14 for 8.1 as at the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer end of the Parent Borrower demonstrating compliance with such most recent four consecutive fiscal quarter period for which financial statements are required to be delivered pursuant to Section calculated in reasonable detail shall be provided to the Administrative Agent). Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended 7.1 prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over the establishment of the Incremental Revolving Commitments (y) giving effect to the Initial Incremental Amount plus (iii) the aggregate amount incurrence of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities any Indebtedness incurred under Section 7.03(i) (and any refinancing the Incremental Revolving Commitments as if it had occurred on the first day of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(ifour consecutive fiscal quarter period), but excluding the principal amount of and in any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, event calculated in connection a manner consistent with the modification, refinancing, refunding, renewal or extension thereof). financial statements described in Section 5.1 and Regulation S-X. The Incremental Term Loans (a) Revolving Commitments shall be treated the same as the Revolving Commitments in all respects, shall constitute Revolving Commitments, shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments)Termination Date, provided that (i) any up front fees paid to induce the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to lenders providing the Incremental Term Loans Revolving Commitments shall be determined by the Parent Borrower and the lenders thereof; provided that the .
(b) Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans Commitments may be made, and Revolving Commitment Increases may be provided, made by any existing Lender (it being understood that although no existing Term Lender will shall have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an right or obligation to provide a portion of any an Incremental Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, Commitment) or by any other bank or other lender (any such other bank or other lender being called an “Additional Lender”); , provided that the Administrative Agent Agent, the Issuing Lender and Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such establishing an Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) 11.6 for an assignment of Loans or Revolving Credit Commitments, as applicable, Commitments to such Lender or Additional Lender. The Incremental Revolving Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such CommitmentCommitments, if any, each Additional Lender, if any, and the Administrative Agent (which amendment shall be in form and substance satisfactory to the Administrative Agent, each Lender agreeing to provide such Commitments and each Additional Lender, if any). The Any Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 Sections 6.1 and 6.2 (it being understood that all references to “the date extension of such Credit Extensioncredit on the Closing Date” or similar language in such Section 4.02 Sections 6.1 (to the extent applicable for the relevant transaction) and 6.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower In addition to the foregoing, in connection with the establishment of any Incremental Revolving Commitments, the Administrative Agent shall use notify all existing Revolving Lenders and all Persons proposed to become Revolving Lenders upon the proceeds execution of the applicable Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited Amendment of all amounts required to be paid by this Agreement; provided such Persons such that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each the applicable Incremental Amendment and all such deemed assignment and assumption of participations, payments the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Revolving Loans held by each Dollar Revolving Credit Lender (including each corresponds to such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) ifPercentage. All such payments shall be made by the applicable Persons to the Administrative Agent in Dollars in immediately available funds at or before 11:00 a.m., New York City Time, on the date corresponding Incremental Facility Closing Date. Upon receipt of all such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to payments and the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lenderapplicable Incremental Amendment, the “Administrative Agent shall wire transfer the corresponding amount to the applicable Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed Lender. The Borrower shall pay all amounts required under Section 4.11 in order to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving give effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior payments contemplated to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in under this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceSection.
(bc) This Section 2.14 4.16 shall supersede any provisions in Section 2.13 4.8 or 10.01 11.1 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Second Amendment and Restatement Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 7.11 for the Test Period then last ended calculated in effect at the applicable Incremental Facility Closing Date (it being understood that if the applicable Incremental Facility Closing Date is to occur prior to the date the March 31, 2007 Test Period has become effective, the level set forth in Section 7.11 for the March 31, 2007 Test Period shall be deemed to apply) determined on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)Pro Forma Basis. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)500,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have the right, but not an obligation obligation, to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 4.03 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 4.03 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Revolving Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Revolving Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) ifCommitment. If., on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
(c) For the avoidance of doubt, the Delayed Draw Term Loans, the New Post-First Amendment and Restatement Synthetic L/C Facility and the increase in the Dollar Revolving Credit Commitments on the Worldspan Closing Date shall not be deemed to have been incurred pursuant to this Section 2.14 for any purpose under this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Travelport LTD)
Incremental Credit Extensions. (a) The Parent Borrower may may, at any time or from time to time on or after the Restatement date that is 180 days after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional new tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness Borrower shall (unless, with respect to a Revolving Commitment Increase, no Revolving Credit Borrowing will be made on the effective date thereof) be in compliance with each of any such Incremental Amendment and at the time any covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term Loan is made (after giving effect thereto)or Revolving Commitment Increase and the last day of the most recent Test Period, the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)100,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or CommitmentsDate, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall have a Weighted Average Life to Maturity equal to or in excess of the then longest maturing tranche of Term Loans and (d) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepaymentsprepayments but not with respect to scheduled amortization payments (which shall be independently agreed between the Borrower and the providers of such Incremental Term Loans), ); provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Joint Lead Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent). Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each Revolving Commitment Increase (including, for the avoidance of doubt, any Revolving Commitment Increase when no Revolving Credit Commitments are then outstanding) (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall, in the case of an increase of an existing Class of Loans or Commitments, mature on the Maturity Date of such Class being increased, (c) shall, in the case of a Revolving Commitment Increase when no Revolving Credit Commitments are then outstanding, mature on a date determined by the Parent Borrower and the lenders thereof but in no event earlier than July 30, 2014 and (d) shall be on terms (other than, as set forth in clause (c), maturity date) and pursuant to the documentation applicable to the Revolving Credit Commitments, provided that the upfront fees applicable to any Revolving Commitment Increases shall be determined by the Parent Borrower and the lenders thereof and, provided, further, that, in the case of a Revolving Commitment Increase when no Revolving Credit Commitments are then outstanding, the interest rates applicable to any Revolving Commitment Increases shall be determined by the Parent Borrower and the lenders thereof. Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Clear Channel Communications Inc)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default below (i) all representations and warranties in Section 4 shall existbe true and correct in all material respects, (ii) at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist or would result therefrom and (iii) upon the effectiveness pro forma Consolidated Net Senior Secured Leverage Ratio of any such Incremental Amendment the Borrower and at the time any its Subsidiaries after giving effect to such Incremental Term Loan is made Loans or Revolving Credit Commitment Increase shall not be greater than 5.50 to 1.00.
(after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 b) (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent). b) Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is a whole multiple of $5,000,000 which is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence)) and there shall be not more than four requests for Incremental Term Loans or Revolving Credit Commitment Increases. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Term Loans and the aggregate amount of the Revolving Credit Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence161,000,000.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ai) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, or an increase in one or more existing tranches of an existing tranche of Term Loans term loans (the “Incremental Term Loans”), ) or (bii) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Multicurrency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Credit Commitment Increase”); provided that (ix) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made or any Revolving Credit Commitment Increase becomes effective (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiy) upon the effectiveness of any such Incremental Amendment and at the time of any such request and as of the date an Incremental Term Loan is made (after giving effect thereto)made, the Parent Borrower shall would be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)7.1. Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amountLoans, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior when added to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) Revolving Credit Commitment Increases, shall not exceed $275,000,000, and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing Revolving Credit Commitment increases shall not exceed $150,000,000. Each tranche of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the any existing Term Loans, (b) shall not mature earlier than the Maturity Date maturity date with respect to the Tranche B any existing Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or CommitmentsLoans, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B existing Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided, provided that (i) except as provided in preceding clauses (a), (b) and (c), the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the .
(b) Each series of Incremental Term Loans borrowed pursuant to this Section shall not have be a Weighted Average Life to Maturity shorter than that of the Tranche B separate Incremental Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence)Loan Facility. Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Credit Commitment Increases. Incremental Term Loans may be made, and Revolving Credit Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such . Incremental Term Loans or providing such shall be effected, and Revolving Credit Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans shall become Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments hereunder (or or, in the case of a Revolving Credit Commitment Increase to be provided by an existing Dollar Revolving Credit Lender or Multicurrency Revolving Credit Lender, as applicable, an increase in such Lender’s applicable Dollar Revolving Credit CommitmentCommitment or Multicurrency Revolving Credit Commitments, as applicable) under this Agreement and each Additional Lender shall become a Lender hereunder pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. In addition, the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such Incremental Amendment (including confirmation that the obligations of the Loan Parties with respect to an increase to the existing Dollar Revolving Loan Commitments or Multicurrency Revolving Credit Commitments, as applicable, (and any Loans or extensions of credit thereunder) or an Incremental Term Loan are secured by the Collateral and the perfection and priority of the Administrative Agent’s Lien in such Collateral has not been affected by a Revolving Credit Commitment Increase or the Incremental Term Loans as applicable). The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 5.2 (it being understood that all references to “the date of such Credit Extensionextension of credit” or similar language in such Section 4.02 5.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower No Lender shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for be obligated to provide any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Credit Commitment Increases shall be used to permanently repay or prepay such Indebtedness). unless it so agrees.
(c) Upon each increase in (A) the Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments, as applicable, pursuant to this Section 2.14Section, (xi) each Dollar Revolving Credit Lender or Multicurrency Revolving Credit Lender, as applicable, immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Credit Commitment Increase (each each, a “Dollar Revolving Credit Commitment Increase Lender”)) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s or Multicurrency Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit, Multicurrency Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (ix) participations hereunder in Dollar Letters of Credit or Multicurrency Letters of Credit and (iiy) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender or Multicurrency Revolving Credit Lender, as applicable (including each such Dollar Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments of all Dollar Revolving Credit Lenders or Multicurrency Revolving Credit Commitments, as applicable, represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yii) if, on the date of such increase, there are any Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Credit Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Multicurrency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.052.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(bd) This Section 2.14 2.25 shall supersede any provisions in Section 2.13 or 10.01 10.1 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Original Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar any Class of Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with each of the covenant covenants set forth in Section 7.14 for the Test Period then last ended calculated 7.11 determined on a pro forma basis for Pro Forma Basis as of the last day of the most recent Test Period, in each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (Loans or Revolving Commitment Increases, as applicable, had been outstanding and a certificate from fully borrowed on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 10,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)50,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Latest Maturity Date with respect to of any Loans outstanding at the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case time of an increase Incurrence of an existing Class of Loans or Commitments, in which case such Incremental Term Loan Loans and shall have a weighted average life to maturity no shorter than the weighted average life to maturity of the Term B-2 Loans and the Term B-3 Loans (except by virtue of amortization of or Revolving Commitment Increase shall mature on the Maturity Date prepayment of such Class being increased) Term B-2 Loans or the Term B-3 Loans prior to such date of determination), and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term B-2 Loans and the Term B-3 Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule (subject to clause (b) above) applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided further that (i) if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount that are paid to all Lenders (and not any one Lender) providing such Incremental Term Loans) relating to any Incremental Term Loans exceeds the Applicable Rate (which, for such purposes only, shall not have a Weighted Average Life be deemed to Maturity shorter than that of the Tranche B Term Loans (without giving effect include all upfront or similar fees or original issue discount payable to any prior Extensions thereof) (except by virtue of amortization or prepayment of all Lenders providing the Term Loans) relating to the Term B-2 Loans or the Term B-3 Loans immediately prior to the time effectiveness of the applicable Incremental Amendment by more than 0.50%, the Applicable Rate relating to the Term B-2 Loans and/or the Term B-3 Loans, as applicable, shall be adjusted to be equal to the Applicable Rate (which, for such incurrence)purposes only, shall be deemed to include all upfront or similar fees or original issue discount that are paid to all Lenders (and not any one Lender) providing such Incremental Term Loans) relating to such Incremental Term Loans minus 0.50%. Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have the right, but not an obligation obligation, to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent Agent, L/C Issuer and Swing Line Lender shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit CommitmentRevolving
(a) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase of the applicable Class (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, subject to Section 2.17, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender of the applicable Class (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of such Class of all Dollar Revolving Credit Lenders of such Class represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment of such Class and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans of such Class outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans of such Class made hereunder (reflecting such increase in Dollar Revolving Credit CommitmentsCommitments of such Class), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans Class being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
(c) For the avoidance of doubt, none of the (x) New Term Loans (y) the Term B-2 Loans or (z) the Term B-3 Loans shall be deemed to have been incurred pursuant to this Section 2.14 for any purpose under this Agreement.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent). Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each Revolving Commitment Increase (including, for the avoidance of doubt, any Revolving Commitment Increase when no Revolving Credit Commitments are then outstanding) (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall, in the case of an increase of an existing Class of Loans or Commitments, mature on the Maturity Date of such Class being increased, (c) shall, in the case of a Revolving Commitment Increase when no Revolving Credit Commitments are then outstanding, mature on a date determined by the Parent Borrower and the lenders thereof but in no event earlier than July 30, 2014 and (d) shall be on terms (other than, as set forth in clause (c), maturity date) and pursuant to the documentation applicable to the Revolving Credit Commitments, provided that the upfront fees applicable to any Revolving Commitment Increases shall be determined by the Parent Borrower and the lenders thereof and, provided, further,that, in the case of a Revolving Commitment Increase when no Revolving Credit Commitments are then outstanding, the interest rates applicable to any Revolving Commitment Increases shall be determined by the Parent Borrower and the lenders thereof. Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
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Sources: Credit Agreement (Clear Channel Communications Inc)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time on one or more occasions after the Restatement Delayed Draw Term Commitment Expiration Date, by written notice delivered to the First Lien Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ai) one or more additional tranches Classes of term loans or(each, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the a “First Lien Incremental Term LoansFacility”)) and/or additional term loans of the same Class of any existing Class of term loans (each, a “First Lien Incremental Term Increase”) and/or (bii) one or more increases in the amount of the Dollar Revolving Credit Commitments of any Class (each such increase, a “Dollar First Lien Incremental Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increasethe First Lien Incremental Term Loans, a the “Revolving Commitment IncreaseFirst Lien Incremental Facilities”); provided that (i) upon that, both at the time of any such request and after giving effect to the effectiveness of any First Lien Incremental Facility Amendment referred to below, no Default or Event of Default shall exist, (ii) below and at the time that any such First Lien Incremental Term Loan or First Lien Incremental Revolving Commitment Increase is made or effected, (and after giving effect thereto)x) subject to Section 1.06 in the case of any Limited Condition Transaction, no Default or Event of Default shall exist have occurred and be continuing (iii) upon except, in the effectiveness case of the incurrence or provision of any such First Lien Incremental Amendment Facility in connection with a Limited Condition Transaction, no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing at the time any of funding of such First Lien Incremental Term Loan Facility), (y) the Borrower is made in Pro Forma Compliance with the Financial Performance Covenant (for the avoidance of doubt, it is agreed that the determination of such ratio is subject to the Limited Condition Transaction provisions) and (z) the Proved Reserves Coverage Ratio of the Borrower, calculated on a Pro Forma Basis after giving effect theretoto the incurrence of the First Lien Incremental Facilities and any acquisition or Investment consummated in connection therewith and all other appropriate pro forma adjustments (for the avoidance of doubt, it is agreed that the determination of such ratio is subject to the Limited Condition Transaction provisions), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 not exceed 1.75:1.00 for the most recently ended Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent). Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence)Period. Notwithstanding anything to the contrary herein, the aggregate principal amount of the First Lien Incremental Facilities that can be incurred at any time shall not exceed $50,000,000. Each First Lien Incremental Term Loan shall be in a minimum principal amount of $2,000,000 and integral multiples of $500,000 in excess thereof (unless the Borrower and the First Lien Administrative Agent otherwise agree); provided that such amount may be less than $2,000,000 if such amount represents all the remaining availability of the aggregate principal amount of First Lien Incremental Term Loans set forth above. Each First Lien Incremental Revolving Commitment Increase shall be in a minimum principal amount of $1,000,000 and integral multiples of $250,000 in excess thereof (unless the Borrower and the First Lien Administrative Agent otherwise agree); provided that such amount may be less than $1,000,000 if such amount represents all the remaining availability of the aggregate principal amount under the First Lien Incremental Revolving Commitment Increases shall not exceed set forth above.
(Ab) the sum of The First Lien Incremental Facilities (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu equal or junior in right of payment and of security with the Revolving Credit Loans and the Initial Term Loans, shall be secured only by the Collateral securing the First Lien Loan Document Obligations and shall only be guaranteed by the Loan Parties, (bii) in the case of any First Lien Incremental Term Loans, shall not mature earlier than the Term Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a shorter Weighted Average Life to Maturity shorter than the remaining Initial Term Loans, (iii) [reserved], (iv) shall have a maturity date and an amortization schedule (subject to clause (ii) above), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and the First Lien Additional Term Lenders thereunder; provided that, in the event that the Effective Yield for any First Lien Incremental Term Facility that is equal in right of payment with the Tranche B Initial Term Loans and secured by the Collateral on a pari passu basis with the Initial Term Loans is greater than the Effective Yield for the Initial Term Loans, by more than 0.50% per annum, then the Effective Yield for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans are equal to the Effective Yield for the First Lien Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such First Lien Incremental Term Facility prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding) and (v) shall have other terms and conditions as agreed between the Borrower and the lenders providing any such First Lien Incremental Facilities; provided that in no event shall it be a condition to the effectiveness of, or borrowing under, any such First Lien Incremental Term Loans that any representation or warranty of any Loan Party set forth herein be true and correct, except and solely to the extent required by the First Lien Additional Term Lenders providing such First Lien Incremental Term Loans. Any First Lien Incremental Term Increase shall be on the same terms and pursuant to the same documentation applicable to the Term Loans (excluding upfront fees and customary arranger fees). Any First Lien Incremental Term Facility shall be on terms and pursuant to documentation as determined by the Borrowers and the First Lien Additional Term Lenders providing such First Lien Incremental Term Facility, subject to the restrictions and exceptions set forth above.
(c) The First Lien Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Loans being increased (it being understood that, if required to consummate a First Lien Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the First Lien Incremental Revolving Commitment Increase (without giving effect any requirement to pay such fees to any prior Extensions thereof) (except by virtue of amortization or prepayment of existing Revolving Lenders)). Any First Lien Incremental Revolving Commitment Increase shall be on the Term Loans prior same terms and pursuant to the time of such incurrencesame documentation applicable to the Revolving Loans (excluding upfront fees and customary arranger fees). .
(d) Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant First Lien Incremental Term Loans or First Lien Incremental Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender .
(it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withhelde) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of First Lien Incremental Term Loans Increases, First Lien Incremental Term Facility and First Lien Incremental Revolving Commitment Increases shall become Commitments (or in the case of a First Lien Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit LenderCommitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “First Lien Incremental Facility Amendment”) to this Agreement and, as appropriate, the other First Lien Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each First Lien Additional Lender, if any, and the First Lien Administrative Agent. A First Lien Incremental Facility may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any First Lien Incremental Loans or, unless it agrees, be obligated to provide any First Lien Incremental Loans) or by any First Lien Additional Lender. First Lien Incremental Term Increases and loans under First Lien Incremental Revolving Commitment Increases shall be a “Loan” for all purposes of this Agreement and the other First Lien Loan Documents. The First Lien Incremental Facility Amendment may, subject to Section 2.20(b), without the consent of any other Lenders or Loan PartiesLenders, effect such amendments to this Agreement and the other First Lien Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the First Lien Administrative Agent and the Parent Borrower, to effect the provisions of this SectionSection 2.20 (including, in connection with a First Lien Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any First Lien Incremental Facility Amendment and the occurrence of any credit event (andincluding the making (but not the conversion or continuation) of a Loan and the issuance, increase in the case amount, or extension of any a Letter of Credit thereunder) pursuant to such First Lien Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agreeagree and as required by this Section 2.20. The Parent Borrower shall will use the proceeds of the First Lien Incremental Term Loans and First Lien Incremental Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(bf) This Notwithstanding anything to the contrary, this Section 2.14 2.20 shall supersede any provisions in Section 2.13 2.18 or 10.01 Section 9.02 to the contrary.
Appears in 1 contract
Sources: First Lien Credit Agreement (Brigham Minerals, Inc.)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist exist, (ii) the Borrower shall be in compliance with the covenants set forth in Section 7.11 for the Test Period in effect at the applicable Incremental Facility Closing Date (it being understood that if the applicable Incremental Facility Closing Date is to occur prior to the date the December 31, 2007 Test Period has become effective, the levels set forth in Section 7.11 for the December 31, 2007 Test Period shall be deemed to apply), as determined on a Pro Forma Basis and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 Senior Secured Leverage Ratio for the Test Period then last ended calculated Borrower would be not greater than 4.25:1, as determined on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)Pro Forma Basis. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)150,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have the right, but not an obligation obligation, to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) ifCommitment. If, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Original Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar any Class of Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with each of the covenant covenants set forth in Section 7.14 for the Test Period then last ended calculated 7.11 determined on a pro forma basis for Pro Forma Basis as of the last day of the most recent Test Period, in each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (Loans or Revolving Commitment Increases, as applicable, had been outstanding and a certificate from fully borrowed on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 10,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)50,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Latest Maturity Date with respect to of any Loans outstanding at the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case time of an increase Incurrence of an existing Class of Loans or Commitments, in which case such Incremental Term Loan Loans and shall have a weighted average life to maturity no shorter than the weighted average life to maturity of the Term B-2 Loans, the Term B-3 Loans and Term B-4 Loans (except by virtue of amortization of or Revolving Commitment Increase shall mature on the Maturity Date prepayment of such Class being increased) Term B-2 Loans, Term B-3 Loans or Term B-4 Loans prior to such date of determination), and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term B-2 Loans, the Term B-3 Loans and the Term B-4 Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule (subject to clause (b) above) applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided further that (i) if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount that are paid to all Lenders (and not any one Lender) providing such Incremental Term Loans) relating to any Incremental Term Loans exceeds the Applicable Rate (which, for such purposes only, shall not have a Weighted Average Life be deemed to Maturity shorter than that of the Tranche B Term Loans (without giving effect include all upfront or similar fees or original issue discount payable to any prior Extensions thereof) (except by virtue of amortization or prepayment of all Lenders providing the Term Loans) relating to the Term B-2 Loans, the Term B-3 Loans or the Term B-4 Loans immediately prior to the time effectiveness of the applicable Incremental Amendment by more than 0.50%, the Applicable Rate relating to the Term B-2 Loans, the Term B-3 Loans and/or the Term B-4 Loans, as applicable, shall be adjusted to be equal to the Applicable Rate (which, for such incurrence)purposes only, shall be deemed to include all upfront or similar fees or original issue discount that are paid to all Lenders (and not any one Lender) providing such Incremental Term Loans) relating to such Incremental Term Loans minus 0.50%. Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have the right, but not an obligation obligation, to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent Agent, L/C Issuer and Swing Line Lender shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.such
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Original Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar any Class of Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with each of the covenant covenants set forth in Section 7.14 for the Test Period then last ended calculated 7.11 determined on a pro forma basis for Pro Forma Basis as of the last day of the most recent Test Period, in each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (Loans or Revolving Commitment Increases, as applicable, had been outstanding and a certificate from fully borrowed on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 10,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)50,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Latest Maturity Date with respect to of any Loans outstanding at the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case time of an increase Incurrence of an existing Class of Loans or Commitments, in which case such Incremental Term Loan Loans and shall have a weighted average life to maturity no shorter than the weighted average life to maturity of the Term B 2 Loans (except by virtue of amortization of or Revolving Commitment Increase shall mature on the Maturity Date prepayment of such Class being increasedTerm B 2 Loans prior to such date of determination) and (c) except as set forth above, shall be treated substantially the same as the Tranche Term B Term 2 Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule (subject to clause (b) above) applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided further that (i) if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount that are paid to all Lenders (and not any one Lender) providing such Incremental Term Loans) relating to any Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans exceeds the
(without giving effect to any prior Extensions thereofa) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase of the applicable Class (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, subject to Section 2.17, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender of the applicable Class (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of such Class of all Dollar Revolving Credit Lenders of such Class represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment of such Class and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans of such Class outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans of such Class made hereunder (reflecting such increase in Dollar Revolving Credit CommitmentsCommitments of such Class), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans Class being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
(c) For the avoidance of doubt, neither the New Term Loans nor the Term B 2 Loans shall be deemed to have been incurred pursuant to this Section 2.14 for any purpose under this Agreement.
Appears in 1 contract
Sources: Credit Agreement (CRC Health CORP)
Incremental Credit Extensions. (a) The Parent Borrower Company may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness Company shall be in compliance with each of any such Incremental Amendment and at the time any covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term Loan is made (after giving effect thereto)or Revolving Commitment Increase and the last day of the most recent Test Period, the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating Company for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 50,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount750,000,000 and the Receivables Facility Shortfall Amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior as reduced from time to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) time; provided that the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have Revolving Commitment Increases shall not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)exceed $750,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower Company and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower Company pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have an obligation the right to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 2.15 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent BorrowerCompany, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerCompany, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall Company will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent U.S. Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent, the Canadian Agent and any other applicable Facility Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), (bi) one or more increases in the amount of (x) the U.S. Dollar Revolving Credit Facility Commitments to be made available to the U.S. Borrower (each such increase, a “U.S. Dollar Revolving Facility Commitment Increase”), or (y) the Multicurrency Facility Commitments to be made available to the U.S. Borrower and the Canadian Borrower (each such increase, a “Multicurrency Facility Commitment Increase”) or (cii) to add one or more increases in the amount tranches of the Alternative Currency Revolving Credit Commitments term loans (each such increaseeach, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment IncreaseIncremental Term Loan”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Commitment Increase or Incremental Term Loan is made provided (and after giving effect thereto), ) no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent U.S. Borrower shall be in pro forma compliance with each of the covenant covenants set forth in Section 7.14 for 7.12 determined on a Pro forma Basis as of the last day of the most recently ended Test Period then as if the Commitments, after giving effect to such Commitment Increase, had been fully drawn on the last ended calculated on a pro forma basis day of such fiscal quarter of the U.S. Borrower for such Incremental Amendment and/or testing compliance therewith. Each Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent). Each tranche of Incremental Term Loans in an aggregate principal amount not less than $25,000,000 and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence)10,000,000. Notwithstanding anything to the contrary herein, the aggregate amount of the Commitment Increases and Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) $75,000,000. Each U.S. Dollar Facility Commitment Increase shall be on the sum of (i) $1,500,000,000 (such amount, same terms and conditions as the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended U.S. Dollar Facility Commitments in effect immediately prior to such U.S. Dollar Facility Commitment Increase. Each Multicurrency Facility Commitment Increase shall be on the date of determination same terms and calculated on a pro forma basis conditions as the Multicurrency Facility Commitments in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant effect immediately prior to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount Multicurrency Facility Commitment Increase. The terms of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term Loans (set forth in each case, including with respect to mandatory and voluntary prepayments), an Incremental Amendment; provided that (i) the terms and conditions applicable to final maturity date of any Incremental Term Loans may shall be materially different from those of no earlier than the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and U.S. Dollar Facility Maturity Date, (ii) the all-in-yield (whether in the form of interest rates and amortization schedule applicable to rate margins, original issue discount, upfront fees or any interest rate floor) for the Incremental Term Loans shall be determined by the Parent U.S. Borrower and the lenders thereof; provided that providing such Incremental Term Loans and any prepayment premiums applicable to any Incremental Term Loans will be determined by the U.S. Borrower and the lenders providing such Incremental Term Loans, (iii) any Incremental Term Loans will rank pari passu in right of payment and be secured on a pari passu basis with the obligations in respect of the Aggregate U.S. Dollar Facility Commitments, (iv) subject to clause (i), the amortization schedule applicable to any Incremental Term Loans shall not have a Weighted Average Life be determined by the U.S. Borrower and the lenders thereunder, (v) the mandatory prepayments applicable to Maturity shorter than that of the Tranche B any Incremental Term Loans (without giving effect to any prior Extensions thereof) (except will be determined by virtue of amortization or prepayment of the U.S. Borrower and the lenders providing such Incremental Term Loans prior and (vi) any Incremental Term Loans shall otherwise be on terms and pursuant to documentation reasonably satisfactory to the time of such incurrence)Administrative Agent. Each notice from the Parent U.S. Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Commitment Increase or Incremental Term Loans or Revolving Commitment IncreasesLoans. (x) Incremental Term Loans may be madeprovided by any existing Lender or any Additional Lender reasonably acceptable to the Administrative Agent, and Revolving (y) U.S. Dollar Facility Commitment Increases may be provided, provided by any existing U.S. Dollar Facility Lender (it being understood that no and each existing Term U.S. Dollar Facility Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation the right to provide a portion of any Revolving U.S. Dollar Facility Commitment Increase), in each case on terms permitted in this Section 2.14 2.14) and otherwise (z) Multicurrency Facility Commitment Increases may be provided by any existing Multicurrency Facility Lender (and each existing Multicurrency Facility Lender will have the right to provide a portion of any Multicurrency Facility Commitment Increase, in each case on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”permitted in this Section 2.14); provided that (i) the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making providing such Incremental Term Loans or providing such Revolving Commitment Increases Loan if such consent would be required under Section 10.07(b10.06(a) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect and (ii) each of Incremental Term Loans and Revolving Commitment Increases shall become Commitments the Administrative Agent, the applicable Facility Agent (or in the case of a Revolving Multicurrency Facility Commitment Increase Increase), the applicable Swing Line Lender and the applicable L/C Issuers shall have consented (not to be provided by an existing Revolving Credit Lender, an increase in unreasonably withheld) to such Lender’s applicable Revolving Credit Commitmentproviding such Commitment Increase, in each case, if such consent would be required under Section 10.06(a) under this Agreement pursuant to for an amendment (an “Incremental Amendment”) to this Agreement andassignment of Loans or Commitments, as appropriateapplicable, the other Loan Documents (includingto such Lender. Each applicable existing Lender shall, without limitation, an accession by each Additional Lender notice to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, U.S. Borrower and the Administrative Agent. The Incremental Amendment may, without Agent given not later than 10 days after the consent of any other Lenders or Loan Parties, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion date of the Administrative Agent and Agent’s notice delivered pursuant to the Parent Borrower, to effect the provisions first sentence of this Section. The effectiveness of (andparagraph, in the case either agree to make a portion of any Incremental Amendment for an Commitment Increase or Incremental Term Loan, the borrowing under) or decline to do so (and any Incremental Amendment shall be subject to the satisfaction on the date thereof existing Lender that does not deliver such notice within such period of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 10 days shall be deemed to refer have declined to do so). In the event that, on the 10th day after the Administrative Agent shall have delivered the notice pursuant to the effective date first sentence of such this paragraph, the applicable existing Lenders shall have agreed pursuant to the preceding sentence to provide any Commitment Increase or Incremental Amendment) and Term Loan, as applicable, in an aggregate amount less than the amount requested by the U.S. Borrower, any Commitment Increase or Incremental Term Loan may be provided by any other bank or other financial institution (any such other conditions as the parties thereto shall agree. The Parent Borrower shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; bank or other financial institution being called an “Additional Lender”), provided that (i) the Administrative Agent shall have consented (not to the extent the proceeds of be unreasonably withheld) to such Additional Lender’s providing such Incremental Term Loan if such consent would be required under Section 10.06(a) for an assignment of Loans and Revolving Commitment Increases are being used or Commitments, as applicable, to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, Lender and (ii) any amount of Incremental Term Loans in excess each of the Initial Incremental Amount may be used Administrative Agent, the applicable Facility Agent (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after in the Restatement Date but no more than nine months prior to the date case of incurrence of such Incremental Term Loans or effectiveness of such Revolving a Multicurrency Facility Commitment Increase), the Parent Borrower applicable Swing Line Lender and the applicable L/C Issuers shall have repaid any Retained Existing Notes on their final maturity date consented (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), not to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.be
Appears in 1 contract
Sources: Credit Agreement (Carters Inc)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ax) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (by) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) upon both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to belowbelow (including, no Default or Event in the case of Default shall exist, (ii) at the time that any such Incremental Term Loan is made (and Loan, after giving effect thereto), no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated 7.1 determined on a pro forma basis as of the last day of the most recent fiscal quarter for which financial statements have been delivered hereunder, in each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (Loans or Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarter for testing compliance therewith and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided after giving effect to the Administrative Agent)intended use of proceeds thereof. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 50,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 50,000,000 if (x) such amount represents all remaining availability under the limit set forth in the next sentencesentence or (y) if otherwise agreed to by the Administrative Agent). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)500,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice (each, an “Incremental Facility Activation Notice”) from the Parent Borrower pursuant to this Section 2.20, which shall be in form reasonably satisfactory to the Administrative Agent, shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases, including, in the case of Incremental Term Loans, (i) the applicable Incremental Term Maturity Date, (ii) the amortization schedule, if any, for such Incremental Term Loans, (iii) the Applicable Margin for such Incremental Term Loans and (iv) the proposed original issue discount applicable to such Incremental Term Loans, if any. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) 10.6 for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit LenderCommitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed (in the case of such amendment to this Agreement) by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Any Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the (i) execution of a New Lender Supplement by each Lender not previously party to this Agreement, and (ii) satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 5.2 and, if applicable Section 5.3 (it being understood that all references to “the date of such Credit Extensionextension of credit” or similar language in such Section 4.02 5.2 and, if applicable, Section 5.3, shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments Commitments, if any, pursuant to this Section 2.14Section, (xa) each Dollar Lender with a Revolving Credit Lender Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Lender with a Revolving Credit Lender Commitment (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Lenders with Revolving Credit Lenders Commitments represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.052.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 2.20 shall supersede any provisions in Section 2.13 or 10.01 10.1 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement ClosingFifth Amendment Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ai) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”)) or, (bii) one or more increases in the amount of any Class of Term Loan (each such increase, a “Term Loan Increase” and the Dollar Loans issued thereunder, “Increased Term Loans”) or (iii) one or more increases in the amount of any Class of Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”),; provided that (iA) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiB) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with each of the covenant covenants set forth in Section 7.14 for the Test Period then last ended calculated 7.11 determined on a pro forma basis for Pro Forma Basis as of the date of such Incremental Amendment and/or Term Loan, Term Loan Increase or Revolving Commitment Increase and the last day of the most recent Test Period, as if such Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans, Increased Term Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans Loans, each Term Loan Increase and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans (which, for this purpose, shall include Term B-6 Loans but shall not include Term B-7 Loans, Term B-8 Loans, Term B-9 Loans or Term B-10 Loans), Increased Term Loans and the Revolving Commitment Increases after the Fifth Amendment Effective Date (other than (x), for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.17 and (y) Replacement Revolving Commitments) shall not exceed (A) the sum of (ix) $1,500,000,000 (such amount, the “Initial Incremental Amount”) 500,000,000 plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal payments made in respect of the Term Loans from and after the Fifth Amendment Effective Date as of such Incremental Facility Closing Date (including, in the case any payments to be made in respect of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the on such Incremental Facility Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount proceeds of Permitted Alternative Incremental Facilities Indebtedness Term B-6 Loans to be incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i)on the First Amendment Effective Date only, but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection Term B-2 Loans repaid concurrently with the modificationincurrence of Term B-6 Loans on such date and excluding (I) prepayments of Term B-4 Loans, refinancing, refunding, renewal Term B-5 Loans and Term B-6 Loans with the proceeds of Term B-7 Loans or extension thereofTerm B-8 Loans and (II) prepayments of Term B-7 Loans and Term B-8 Loans with the proceedssuch Incremental Facility Closing Date but excluding any principal payments of Term B-9 Loans or Term B-10 Loans with the proceeds from the issuance of the Senior Notes or the incurrence of the Term A-1 Loans). .
(b) The Incremental Term Loans (ai) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (bii) shallother than as set forth in clause (iv) below, shall (x) in the case of any Incremental Term Loans that are “A” Term Loans, not mature earlier than the Maturity Date with respect to the Tranche B Term Loans, (iii) shall not have a weighted average life to maturity that is shorter than the weighted average life to maturity with respect to the Term Loans and (without giving effect ▇▇▇▇▇ Class of Term Loans that are “A” Term Loans; provided that if there are no Term Loans that are “A” Term Loans at the time such Incremental Term Loans are incurred then such Incremental Term Loans shall not mature earlier than the 90th day prior to Maturity Date with respect to any prior Extensions thereofClass of Term Loans with an aggregate outstanding principal amount of $500,000,000 on the date of incurrence of such Incremental Term Loans and (y) (except in the case of an increase of an existing any Incremental Term Loans that are “B” Term Loans, not mature earlier than (I) the Maturity Date with respect to any Class of Term Loans that are “B” Term Loans or Commitments(II) 90 days after the Maturity Date with respect to any Class of Term Loans that are “A” Term Loans, (iii) other than as set forth in which clause (iv) below, shall (x) in the case of any Incremental Term Loans that are “A” Term Loans, not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity with respect to any Class of Term Loans that are “A” Term Loans, provided that if there are no Term Loans that are “A” Term Loans at the time such Incremental Term Loan or Revolving Commitment Increase Loans are incurred then the quarterly amortization payments prior to the final stated maturity of such Incremental Term Loans as a percentage of the original principal amount of such Incremental Term Loans shall mature not exceed the quarterly amortization payments prior to the final stated maturity of the Term A-1 Loans as a percentage of the original principal amount of the Term A-1 Loans (assuming for such purposed that the Term A-1 Loans were incurred on the Fifth Amendment Effective Date) and (y) in the case of any Incremental Term Loans that are “B” Term Loans, not have a Weighted Average Life to Maturity Date that is shorter than the Weighted Average Life to Maturity with respect to any Class of Term Loans, (iv) in the case of any Incremental Term Loans the proceeds of which are used to prepay any Class of Term Loans, the final maturity and Weighted Average Life to Maturity of such Incremental Term Loans shall be no earlier than or shorter than, as applicable, the final maturity and Weighted Average Life to Maturity of such Class being increased) of Term Loans to be prepaid and (cv) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), ,; provided that (iA) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (iiB) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans .
(without giving effect to any prior Extensions thereofc) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Increased Term Loans or Revolving Commitment Increases. Incremental Term Loans and Increased Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have an obligation the right, but not anhave any obligation, to make a portion of any Incremental Term Loan, unless it otherwise so agrees, each Term Loan Lender will not have any obligation to make a portion of any Increased Term Loan unless it otherwise so agrees and no each existing Revolving Credit Lender will not have an obligation the right, but not anany obligation, to provide a portion of any Revolving Commitment Increase)Increase (other than any Replacement Revolving Commitment)unless it otherwise so agrees, in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent and the Borrower and, solely in the case of any Revolving Commitment Increase, each L/C Issuer and the Swing Line Lender shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or Increased Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans, Increased Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of Increased Term Loans or a Revolving Commitment Increase to be provided by an existing Term Loan Lender or Revolving Credit Lender, as applicable, an increase in such Lender’s applicable Term Loan or Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans, Increased Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Increased Term Loans or Revolving Commitment Increases Increases, unless it so agrees.
(d) Increased Term Loans shall be used on the same terms as, and become part of, the Class of Term Loans proposed to permanently repay or prepay be increased under such Indebtedness). Upon each increase Term Loan Increase; provided that the amount of any original issue discount and upfront fees in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion respect of the Dollar Revolving Commitment Increased Term Loans may differ from those in respect of the Class of Term Loans proposed to be increased so long as the Increased Term Loans will be fungible for U.S. federal income tax purposes with the Class of Term Loans proposed to be increased. The Incremental Amendment shall contain provisions, reasonably acceptable to the Administrative Agent, that provide for a mechanism to ensure that following a Term Loan Increase all Lenders hold a pro rata share (each a “Dollar Revolving Commitment Increase Lender”), and based on holdings of the Term Loans under such Class of each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments each Type of all Dollar Revolving Credit Lenders represented by Term Loan in such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date Class of such increase, there are any Dollar Revolving Credit Term Loans outstanding, such Dollar Revolving Credit Loans shall on or prior subject to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05Term Loan Increase. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 . As of the Incremental Facility Closing Date with respect to any Term Loan Increase, the amortization schedule for the Class of Term Loans subject to such Term Loan Increase shall supersede any provisions in Section 2.13 or 10.01 be amended to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the contraryIncreased Term Loans being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the amounts in effect immediately prior to the applicable Incremental Facility Closing Date.
Appears in 1 contract
Sources: Credit Agreement (West Corp)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ax) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (by) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) upon both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to belowbelow (including, no Default or Event in the case of Default shall exist, (ii) at the time that any such Incremental Term Loan is made (and Loan, after giving effect thereto), no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant covenants set forth in Section 7.14 for the Test Period then last ended calculated 7.1 determined on a pro forma basis as of the last day of the most recent fiscal quarter for which financial statements have been delivered hereunder, in each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (Loans or Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarter for testing compliance therewith and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided after giving effect to the Administrative Agent)intended use of proceeds thereof. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 50,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 50,000,000 if (x) such amount represents all remaining availability under the limit set forth in the next sentencesentence or (y) if otherwise agreed to by the Administrative Agent). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)500,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice (each, an “Incremental Facility Activation Notice”) from the Parent Borrower pursuant to this Section 2.20, which shall be in form reasonably satisfactory to the Administrative Agent, shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases, including, in the case of Incremental Term Loans, (i) the applicable Incremental Term Maturity Date, (ii) the amortization schedule, if any, for such Incremental Term Loans, (iii) the Applicable Margin for such Incremental Term Loans and (iv) the proposed original issue discount applicable to such Incremental Term Loans, if any. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) 10.6 for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit LenderCommitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed (in the case of such amendment to this Agreement) by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Any Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the (i) execution of a New Lender Supplement by each Lender not previously party to this Agreement, and (ii) satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 5.2 and, if applicable Section 5.3 (it being understood that all references to “the date of such Credit Extensionextension of credit” or similar language in such Section 4.02 5.2 and, if applicable, Section 5.3, shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments Commitments, if any, pursuant to this Section 2.14Section, (xa) each Dollar Lender with a Revolving Credit Lender Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Lender with a Revolving Credit Lender Commitment (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Lenders with Revolving Credit Lenders Commitments represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.052.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 2.20 shall supersede any provisions in Section 2.13 or 10.01 10.1 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Original Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar any Class of Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with each of the covenant covenants set forth in Section 7.14 for the Test Period then last ended calculated 7.11 determined on a pro forma basis for Pro Forma Basis as of the last day of the most recent Test Period, in each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (Loans or Revolving Commitment Increases, as applicable, had been outstanding and a certificate from fully borrowed on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 10,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)50,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Latest Maturity Date with respect to of any Loans outstanding at the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case time of an increase Incurrence of an existing Class of Loans or Commitments, in which case such Incremental Term Loan Loans and shall have a weighted average life to maturity no shorter than the weighted average life to maturity of the Term B-2 Loans and the Term B-3 Loans (except by virtue of amortization of or Revolving Commitment Increase shall mature on the Maturity Date prepayment of such Class being increased) Term B-2 Loans or the Term B-3 Loans prior to such date of determination), and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans ▇-▇ ▇▇▇▇▇
(in each case, including with respect to mandatory and voluntary prepayments), provided that (ia) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.this
Appears in 1 contract
Sources: Credit Agreement (CRC Health CORP)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ai) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (bii) one or more increases in the amount of the Dollar any Class of Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (iA) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiB) upon the effectiveness Borrower shall be in compliance with each of any such Incremental Amendment and at the time any covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term Loan is made (after giving effect thereto)or Revolving Commitment Increase and the last day of the most recent Test Period, the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than (x) for the avoidance of doubt those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.17 and (y) Replacement Revolving Commitments) shall not exceed (A) the sum of (ix) $1,500,000,000 (such amount, the “Initial Incremental Amount”) 500,000,000 plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal payments made in respect of the Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing as of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). Facility Closing Date.
(b) The Incremental Term Loans (ai) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (bii) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans, (iii) shall not have a weighted average life to maturity that is shorter than the weighted average life to maturity with respect to the Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (civ) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (iA) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (iiB) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans .
(without giving effect to any prior Extensions thereofc) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have the right, but not an obligation obligation, to provide a portion of any Revolving Commitment IncreaseIncrease (other than any Replacement Revolving Commitment), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent and the Borrower shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Increases, unless it so agrees.
(d) Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (xi) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Dollar Letters of Credit and (iiB) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yii) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(be) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.10.01
Appears in 1 contract
Sources: Credit Agreement (West Corp)
Incremental Credit Extensions. (a) The Parent Borrower Company may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches classes of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower Company shall be in pro forma compliance with the covenant set forth in Section 7.14 for 7.11 determined on a Pro Forma Basis as of the last day of the most recent Test Period then last ended calculated on a pro forma basis for prior to the applicable Incremental Facility Closing Date, in each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increase, as applicable, had been outstanding on the Chief Financial Officer last day of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)Test Period. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 20,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 20,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) exceed, at the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA time of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount incurrence of any such refinancing indebtedness represented by unpaid accrued interest and premium on Incremental Term Loans or Revolving Commitment Increases, the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)Incremental Amount at such time. The Each tranche of Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Latest Maturity Date with respect Date, (c) shall have a Weighted Average Life to Maturity of no less than the Tranche B Weighted Average Life to Maturity then in effect for any Term Loans (without giving effect to any prior Extensions thereof) (except in outstanding at the case time of an increase the incurrence of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) Loans and (cd) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), ; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates rates, margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower Company and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower Company pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have an obligation the right, but no obligation, to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent and each L/C Issuer (in the case of a Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent BorrowerCompany, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerCompany, to effect the provisions of this SectionSection (including, if applicable, any amendment necessary to treat any Incremental Term Loans as a new “Class” of Loans hereunder). The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall Company will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (DJO Finance LLC)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request (ai) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans under this Agreement (the “Incremental Term Loans”), ) or (bii) one or more increases in the amount of the Dollar Revolving Credit Commitments or one or more additional tranches of revolving credit commitments under this Agreement (each such increaseincrease or additional tranche, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment IncreaseIncremental Term Loans, a “Revolving Commitment Credit Increase”); provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) at the time that any such Incremental Term Loan is made (and exist or would exist immediately after giving effect thereto), no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent). Each tranche of Incremental Term Loans and each Revolving Commitment Credit Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 10,000,000 (provided or such lower amount that such amount may be less than a Dollar Amount of $100,000,000 if such amount either represents all remaining availability under the limit set forth in the next sentencesentence or is acceptable to the Administrative Agent). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Credit Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) 100,000,000 minus the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any Additional Pari Passu Notes and Second Lien Additional Indebtedness incurred on or prior to the applicable Incremental Facility Closing Date plus (B) such refinancing indebtedness represented by unpaid accrued interest additional amount that may be incurred if after giving effect to such Credit Increase and premium any contemporaneous Additional Pari Passu Notes (and assuming all Revolving Commitment Increases under any such Credit Increase were fully drawn but without netting of any proceeds received as cash or Cash Equivalents from such Credit Increase and any Additional Pari Passu Notes for purposes of clause (ii) of the definition of Consolidated First Lien Leverage Ratio) and the use of the proceeds thereof, the Consolidated First Lien Leverage Ratio on the indebtedness being refinanced plus other reasonable amounts paida Pro Forma Basis shall be less than or equal to 4.25 to 1.00; provided further, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans that (a1) Credit Increases shall rank pari passu in right of payment and of with respect to security with and have the same guarantees as the then-existing Revolving Credit Loans and the Term Loans, (b2) Incremental Term Loans shall not mature earlier than the Term Loan Maturity Date, (3) (x) Revolving Commitment Increases shall not mature earlier than the Revolving Credit Maturity Date and (y) the effectiveness of any Revolving Commitment Increase, together with respect to the Tranche B Term Loans (without giving effectiveness of any Refinancing Amendment, shall not result in there being more than three separate Maturity Dates in effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or for all Revolving Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased(4) and (c) shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity not shorter than that the remaining Weighted Average Life to Maturity of the Tranche B then-existing Term Loans, (5) Incremental Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of shall be treated in the same manner as the Term Loans prior for purposes of Section 2.13(e), (6) no Credit Increase shall have an Applicable Percentage (or other interest rate spread equivalent) applicable to the time Incremental Term Loans and/or Revolving Commitment Increase that exceeds the Applicable Percentage then existing with respect to the Term Loans and/or Revolving Loans by more than 0.25% per annum unless the Applicable Percentage with respect to the Term Loans and/or Revolving Loans is increased so that the Applicable Percentage (or other interest rate spread equivalent) applicable to the Incremental Term Loans and/or Revolving Commitment Increases does not exceed the Applicable Percentage then existing with respect to the Term Loans by more than 0.25% per annum; provided that in determining the Applicable Percentage (or other interest rate spread equivalent) applicable to the Term Loans and the Incremental Term Loans and the Revolving Commitment Increases and the Revolving Loans, (x) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Term Lenders or with respect to the Incremental Term Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if less, the remaining life to maturity of the Incremental Term Loans), (y) customary arrangement or commitment fees payable to the Arrangers (or their Affiliates) in connection with the Term Loans and/or the Revolving Credit Commitments or to one or more arrangers (or their Affiliates) of the Incremental Term Loans and/or the Revolving Commitment Increases shall be excluded and (z) if the Eurodollar rate in respect of such incurrence)Incremental Term Loans includes a floor greater than the floor applicable to the Term Loans under the definition of “Adjusted Eurodollar Rate”, such excess amount shall be equated to interest rate spread for purposes of determining any increase to the Applicable Percentage applicable to the Term Loans, to the extent an increase in the interest rate floor in the then-existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the then-existing Term Loans shall be increased to the extent of such differential between interest rate floors and (7) shall have such other terms as may be agreed between the Borrower and the Additional Lenders providing such Incremental Term Loan. Each notice from the Parent Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment IncreasesCredit Increase. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent relevant Persons under Section 9.04(b) shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases Increases, if such consent would be required under Section 10.07(b9.04(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. .
(b) Commitments in respect of Incremental Term Loans and Revolving Commitment Credit Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit LenderLender under the existing Revolving Credit Commitments, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this SectionSection 2.24. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in (x) in the case of any Revolving Commitment Increase, Section 4.02 4.01 and (y) in the case of any Incremental Term Loans, Section 4.01(a), (b) and (c) (in each case, it being understood that all references to “the date of such Credit ExtensionEvent” or similar language in such Section 4.02 4.01 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree). The Parent Borrower shall may use the proceeds of the Incremental Term Loans and Revolving Commitment Credit Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases . No Lender shall be used obligated to permanently repay or prepay such Indebtedness)provide any Credit Increase unless it so agrees in its sole discretion. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Swingline Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 2.16.
(c) The Borrower may at any time from time to time after the Closing Date, by notice to the Administrative Agent, request one or more series of senior unsecured notes or senior secured notes that will be secured by the Collateral (and (Bguaranteed by any Guarantor) on a pari passu basis with the Alternative Currency Revolving Credit Commitments Secured Obligations, that are issued or made in lieu of any Incremental Term Loans pursuant to this Section 2.14an indenture or a note purchase agreement or otherwise and any extensions, renewals, refinancings and replacements thereof (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase LendersAdditional Pari Passu Notes”); provided that both at the time of any such request and upon the effectiveness of any issuance of Additional Pari Passu Notes, and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion no Default or Event of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, Default shall exist or would exist immediately after giving effect thereto. Each issuance of Additional Pari Passu Notes shall be in an aggregate principal amount that is not less than $10,000,000 (or such lower amount that either represents all remaining availability under the limit set forth in the next sentence or is acceptable to each such deemed assignment and assumption of participationsthe Administrative Agent). Notwithstanding anything to the contrary herein, the percentage aggregate amount of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender Additional Pari Passu Notes shall not exceed (including each such Alternative Currency Revolving Commitment Increase LenderA) will equal the percentage of $100,000,000 minus the aggregate Alternative Currency Revolving principal amount of any Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment Increases and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall Second Lien Additional Indebtedness incurred on or prior to the effectiveness date of issuance of such Alternative Currency Additional Pari Passu Notes plus (B) such additional amount that may be incurred if after giving effect to such issuance of Additional Pari Passu Notes and any contemporaneous Credit Increase (and assuming all Revolving Commitment Increases under any such Credit Increase be prepaid were fully drawn but without netting of any proceeds received as cash or Cash Equivalents from any such Credit Increase and Additional Pari Passu Notes for purposes of clause (ii) of the definition of Consolidated First Lien Leverage Ratio) and the use of the proceeds thereof, the Consolidated First Lien Leverage Ratio on a Pro Forma Basis shall be less than or equal to 4.25 to 1.00; provided further that (1) any Additional Pari Passu Notes that are secured shall (A) rank pari passu in right of additional Alternative Currency Revolving Credit payment and with respect to security on the Collateral pari passu with the Obligations under the Loan Documents, (B) not be secured by any Lien on any asset of the Borrower or any Restricted Subsidiary other than any asset constituting Collateral, (C) shall be secured by security agreements relating to such Additional Pari Passu Notes substantially the same as the Security Documents (with such differences as are reasonably acceptable to the Administrative Agent) and the holders thereof (or the trustee or other representative under the indenture or other agreement governing such Additional Pari Passu Notes on such holders’ behalf) shall have executed and delivered and be subject to the Intercreditor Agreement , (2) such Additional Pari Passu Notes shall not be guaranteed by any Person other than a Loan Party, (3) such Additional Pari Passu Notes shall not mature earlier than the Latest Maturity Date with respect to Term Loans made hereunder at such time, (reflecting 4) such increase Additional Pari Passu Notes shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (5) such Additional Pari Passu Notes shall not have any mandatory prepayment provisions (other than provisions related to customary asset sale, casualty or condemnation events and change of control offers and customary acceleration rights upon an event of default) that could result in Alternative Currency Revolving Credit Commitmentsprepayments of such Additional Pari Passu Notes prior to the Term Loans then in effect, (6) such Additional Pari Passu Notes shall have pricing, fees (including upfront fees and OID), which prepayment shall be accompanied optional prepayment, redemption premiums and subordination terms as determined by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent Borrower and the Lenders hereby agree investors providing such Additional Pari Passu Notes and (7) such Additional Pari Passu Notes have terms and conditions (except as otherwise provided in clauses (5) and (6) above), taken as a whole, that are substantially identical to or no more favorable to the minimum borrowing, pro rata borrowing investors providing such Additional Pari Passu Notes than the terms and pro rata payment requirements contained elsewhere in conditions of this Agreement shall not apply (except for covenants or other provisions applicable only to periods after the transactions effected pursuant to the immediately preceding sentenceLatest Maturity Date).
(bd) This Section 2.14 2.24 shall supersede any provisions in Section 2.13 2.18 or 10.01 9.08 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower Company may at any time or from time to time after the Restatement DateFifth Amendment Effective Date but excluding during the Pre-IPO Period, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness Company shall be in compliance with each of any such Incremental Amendment the covenants set forth in Section 7.11(a) and at (b) determined on a Pro Forma Basis as of the time any date of such Incremental Term Loan is made (after giving effect thereto)or Revolving Commitment Increase and the last day of the most recent Test Period, the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating Company for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 50,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans Loans, the Revolving Commitment Increases and Alternative Incremental Facility Debt (x) after the Fifth Amendment Effective Date and prior to the AS Separation Date shall not exceed $750,000,000 and (y) from and after the AS Separation Date shall not exceed $500,000,000 less the aggregate principal amount (not in excess of $500,000,000) of Incremental Term Loans, Revolving Commitment Increases and Alternative Incremental Facility Debt incurred after the Fifth Amendment Effective Date and prior to the AS Separation Date; provided that the aggregate amount of the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)200,000,000. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Latest Maturity Date with respect to the Tranche B Term Loans (without giving that is in effect to any prior Extensions thereof) (except in on the case of an increase of an existing Class of Loans or Commitments, in which case date such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) Loans are incurred and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower Company and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower Company pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent BorrowerCompany, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerCompany, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall Company will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Second Amendment and Restatement Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 7.11 for the Test Period then last ended calculated in effect at the applicable Incremental Facility Closing Date determined on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)Pro Forma Basis. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)500,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Latest Maturity Date with respect to in effect at the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case time such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) Loans are incurred and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (other than the Tranche S Term Loans) (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have the right, but not an obligation obligation, to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 4.03 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 4.03 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Revolving Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Revolving Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) ifCommitment. If, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from fr om the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Travelport LTD)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent). Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each Revolving Commitment Increase (including, for the avoidance of doubt, any Revolving Commitment Increase when no Revolving Credit Commitments are then outstanding) (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall, in the case of an increase of an existing Class of Loans or Commitments, mature on the Maturity Date of such Class being increased, (c) shall, in the case of a Revolving Commitment Increase when no Revolving Credit Commitments are then outstanding, mature on a date determined by the Parent Borrower and the lenders thereof but in no event earlier than July 30, 2014 and (d) shall be on terms (other than, as set forth in clause (c), maturity date) and pursuant to the documentation applicable to the Revolving Credit Commitments, provided that the upfront fees applicable to any Revolving Commitment Increases shall be determined by the Parent Borrower and the lenders thereof and, provided, further, that, in the case of a Revolving Commitment Increase when no Revolving Credit Commitments are then outstanding, the interest rates applicable to any Revolving Commitment Increases shall be determined by the Parent Borrower and the lenders thereof. Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Clear Channel Communications Inc)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ai) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, or an increase in one or more existing tranches of an existing tranche of Term Loans term loans (the “Incremental Term Loans”), ) or (bii) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Multicurrency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Credit Commitment Increase”); provided that (ix) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made or any Revolving Credit Commitment Increase becomes effective (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiy) upon the effectiveness of any such Incremental Amendment and at the time of any such request and as of the date an Incremental Term Loan is made (after giving effect thereto)made, the Parent Borrower shall would be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)7.1. Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amountLoans, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior when added to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) Revolving Credit Commitment Increases, shall not exceed $250,000,000, and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing Revolving Credit Commitment increases shall not exceed $125,000,000. Each tranche of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the any existing Term Loans, (b) shall not mature earlier than the Maturity Date maturity date with respect to the Tranche B any existing Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or CommitmentsLoans, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B existing Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided, provided that (i) except as provided in preceding clauses (a), (b) and (c), the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the .
(b) Each series of Incremental Term Loans borrowed pursuant to this Section shall not have be a Weighted Average Life to Maturity shorter than that of the Tranche B separate Incremental Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence)Loan Facility. Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Credit Commitment Increases. Incremental Term Loans may be made, and Revolving Credit Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 7.11 for the Test Period then last ended calculated in effect at the applicable Incremental Facility Closing Date (it being understood that if the applicable Incremental Facility Closing Date is to occur prior to the date the March 31, 2007 Test Period has become effective, the level set forth in Section 7.11 for the March 31, 2007 Test Period shall be deemed to apply) determined on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)Pro Forma Basis. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)500,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have the right, but not an obligation obligation, to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Revolving Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Revolving Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) ifCommitment. If, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower Borrowers may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request request, in the case of Dollarama (a) one or more additional tranches of U.S. Dollar denominated term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental U.S. Dollar Term Loans”), (b) one or more increases in additional tranches of Canadian Dollar denominated term loans (the amount of “Incremental Canadian Dollar Term Loans”, and together with any Incremental U.S. Dollar Term Loans, the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment IncreaseIncremental Term Loans”) or in the case of any Borrower, (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments relating to Canadian Dollar denominated loans to be made available to the Borrower (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a the “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent applicable Borrower shall be in pro forma compliance with each of the covenant covenants set forth in Section 7.14 for the Test Period then last ended calculated 7.11 determined on a pro forma basis for Pro Forma Basis as of the last day of the most recently ended fiscal quarter of such Borrower as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans had been outstanding on the Chief Financial Officer last day of the Parent such fiscal quarter of such Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a CA$25,000,000 (or the U.S. Dollar Amount of $100,000,000 equivalent thereof as determined by the Agents) (provided that (i) with respect to any tranche of Incremental Term Loans that will not be incorporated into a tranche of existing Term Loans, such amount may not be less than CA$50,000,000 (or the U.S. Dollar equivalent thereof as determined by the Agents) and (ii) such amount may be less than a CA$25,000,000 (or the U.S. Dollar Amount of $100,000,000 equivalent thereof as determined by the Agents) if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not together exceed CA$150,000,000 (A) or the sum of (i) $1,500,000,000 (such amount, U.S. Dollar equivalent thereof as determined by the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereofAgents). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except to, in the case of an increase of an existing Class of Loans or Commitmentsany Incremental Canadian Dollar Term Loans, in which case the Term A Facility and with respect to any Incremental U.S. Dollar Term Loans, the Term B Facility (but may have nominal amortization prior to such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and date), (c) except as set forth above, shall be treated substantially the same as (and in any event no more favorably than) the Tranche Term A Loans or Term B Term Loans Loans, as applicable (in each case, including with respect to mandatory and voluntary prepayments, covenants, guarantees and collateral), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of maturing after the Maturity Date with respect to the Term Loans A Facility or Term B Facility, as applicable, may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date with respect to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and Term A Facility or Term B Facility, as applicable, (ii) the interest rates Incremental Term Loans may be priced differently than the Term Loans, and amortization schedule applicable to (iii) the terms of the Incremental Term Loans and Revolving Commitment Increases (including with respect to maturity, amortization and mandatory prepayments) shall be determined by the Parent Borrower and the lenders thereofstructured to avoid any Canadian withholding tax on interest payments thereon; provided further that (i) if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans) relating to any Incremental Term Loans exceeds the Applicable Rate (which, for such purposes only, shall not have a Weighted Average Life be deemed to Maturity shorter than that of include all upfront or similar fees or original issue discount payable to all Lenders providing the Tranche B Term Loans (without giving effect Loans) relating to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans immediately prior to the time effectiveness of the applicable Incremental Amendment by more than 0.50%, the Applicable Rate relating to the Term Loans shall be adjusted to be equal to the Applicable Rate (which, for such incurrence)purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Term Loans) relating to such Incremental Term Loans minus 0.50%. Each notice from the Parent Borrower Dollarama pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment IncreasesLoans. Incremental Term Loans may be made, and Revolving Commitment Credit Increases may be provided, made by any existing Lender (it being understood that no and each existing Term Lender will have an obligation the right to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”Agents); provided that the Administrative Agent Agents shall have consented (such consent not to be unreasonably withheld) to such Lender’s making such Incremental Term Loans if such consent would be required under Section 10.07(a) for an assignment of Loans to such Lender and provided, further that Revolving Commitment Increases and Incremental Canadian Dollar Term Loans shall not be held by any Foreign Lender without the consent of Dollarama. Each existing Lender shall, by notice to the applicable Borrower and the Agents given not later than 10 days after the date of the Agents’ notice delivered pursuant to the first sentence of this paragraph, either agree to make a portion of any Incremental Term Loan or provide a portion of any Revolving Commitment Increase, or decline to do so (and any existing Lender that does not deliver such notice within such period of 10 days shall be deemed to have declined to do so). In the event that, on the 10th day after the Administrative Agent shall have delivered the notice pursuant to the first sentence of this paragraph, the existing Lenders shall have agreed pursuant to the preceding sentence to make Incremental Term Loans or to provide Revolving Commitment Increase, as applicable, in an aggregate amount less than the amount requested by the applicable Borrower, the Incremental Term Loans may be made, and any Revolving Commitment Increase may be provided, by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b10.07(a) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Additional Lender or Additional Lenderand provided, further that Revolving Commitment Increases and Incremental Canadian Dollar Term Loans shall not be held by any Foreign Lender without the consent of Dollarama. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative AgentAgents. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerAgents, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date Closing Date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Subject to the minimum principal amount requirements specified above in this Section 2.14, no more than eight Incremental Facility Closing Dates may be selected by the Borrowers. No Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (xa) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment prepayments shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred incurring by any Lender in accordance with Section 3.05. The Administrative Agent Agents and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) . This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Dollarama CORP)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Extended Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness Borrower shall be in compliance with each of any such Incremental Amendment and at the time any covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term Loan is made (after giving effect thereto)or Revolving Commitment Increase and the last day of the most recent Test Period, the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amountLoans, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior when added to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal Revolving Commitment Increases, shall not exceed $75,000,000. Each tranche of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Latest Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except then in the case of an increase of an existing Class of Loans or Commitmentseffect, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments)) and (d) shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Term Loans, provided further that (i) except as provided in preceding clauses (a), (b), (c) and (d), the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the NEWYORK 7904486 (2K) relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have an obligation the right to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 2.15 and otherwise on terms in a form reasonably acceptable to the Administrative Agent, ) or by any other lender (any such other lender being called an “Additional Lender”); , provided that the Administrative Agent and each other Person that has a consent right under Section 10.07(b) shall have consented (such consent not to be unreasonably withheldwithheld or delayed) to such Lender’s 's or Additional Lender’s 's making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Extending Revolving Credit Lender, an increase in such Lender’s 's applicable Extended Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Extended Revolving Credit Commitments pursuant to this Section 2.14Section, (xA) each Dollar the Pro Rata Shares of the Revolving Credit Lender immediately prior Lenders shall be automatically adjusted at such time to such increase will automatically and without further act be deemed give effect to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, that the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Lender providing a portion of the Revolving Commitment Increase LenderIncrease) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s 's Revolving Credit Commitment Commitment, and (yB) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Extended Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), in each case to the extent necessary so that all of the Revolving Credit Lenders participate in each outstanding Revolving Credit Borrowing based on their Pro Rata Share of their Revolving Credit Commitments (after giving effect to such Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and NEWYORK 7904486 (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”2K), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent US Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the US Dollar-Denominated Facility Lenders), but without requiring the consent of any of the Lenders or any Agent, request (ai) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental US Term Loans”), ) or (bii) one or more increases in the amount of the US Dollar Revolving Credit RCF Commitments (each such increase, a “US Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving RCF Commitment Increase”); provided that (ix) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental US Term Loan is made or any US Dollar RCF Commitment Increase become effective (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiy) upon the effectiveness no Lender shall be obligated to make Incremental US Term Loans or provide a US Dollar RCF Commitment Increase as a result of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)request. Each tranche of Incremental US Term Loans and each Revolving US Dollar RCF Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental US Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amountLoans, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior when added to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal US Dollar RCF Commitment Increases, shall not exceed $150,000,000. Each tranche of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental US Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit US Dollar RCF Loans, the Initial US Term Loans and the any other existing Incremental US Term Loans, (b) shall not mature earlier than the Maturity Date final stated maturity date with respect to the Tranche B Initial US Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or CommitmentsLoans, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B Initial US Term Loans (in each case, including with respect to mandatory and voluntary prepayments), ) and (d) shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Initial US Term Loans; provided that (i) except as provided in preceding clauses (a), (b), (c) and (d), the terms and conditions applicable to Incremental US Term Loans may be materially different from those of the Initial US Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and (subject to clause (d) above) the amortization schedule applicable to the Incremental US Term Loans shall be determined by the Parent US Borrower and the lenders thereof; provided that that, notwithstanding the foregoing, the interest rate applicable to the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B US Term Loans (without after giving effect to all upfront or similar fees or original issue discount payable with respect to such Incremental US Term Loans) shall not be greater than the highest interest rate that may, under any prior Extensions thereofcircumstances, be payable with respect to Initial US Term Loans (or any other existing Incremental US Term Loans) plus 0.25% per annum, unless the interest rate with respect to the Initial US Term Loans (except by virtue and any other existing Incremental US Term Loans) is increased so as to equal the interest rate applicable to the Incremental US Term Loans (after giving effect to all upfront or similar fees or original issue discount payable with respect to such Incremental US Term Loans).
(b) Each series of amortization or prepayment Incremental US Term Loans borrowed pursuant to this Section shall be a separate Incremental US Term Loan Facility unless all of the terms with respect thereto are the same as the Initial US Term Loans prior to (or another Incremental US Term Loan Facility) and such Incremental US Term Loans have the time of such incurrencesame Interest Periods with the Initial US Term Loans (or other Incremental US Term Loans). Each notice from the Parent US Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental US Term Loans or Revolving US Dollar RCF Commitment Increases. Incremental US Term Loans may be made, and Revolving US Dollar RCF Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); provided that if such Additional Lender is not already a Lender, such Additional Lender shall be reasonably satisfactory to the Administrative Agent shall have consented and each US Dollar RCF Issuing Lender (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving in the case of a US Dollar RCF Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional LenderIncrease). Commitments in respect of Incremental US Term Loans and Revolving US Dollar RCF Commitment Increases shall become Commitments (or or, in the case of a Revolving US Dollar RCF Commitment Increase to be provided by an existing Revolving Credit US Dollar RCF Lender, an increase in such Lender’s applicable Revolving Credit US Dollar RCF Commitment) under this Agreement and each Additional Lender shall become a Lender hereunder pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent US Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent US Borrower, to effect the provisions of this Section. In addition, the US Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such Incremental Amendment (including confirmation that the obligations of the Loan Parties with respect to an increase to the existing US Dollar RCF Commitments (and any Loans or extensions of credit thereunder) or an Incremental US Term Loan, as applicable are secured by the Collateral and the perfection and priority of the Administrative Agent’s Lien in such Collateral has not been affected by a US Dollar RCF Commitment Increase or Incremental US Term Loans, as applicable). The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 5.2 (it being understood that all references to “the date of such Credit Extensionextension of credit” or similar language in such Section 4.02 5.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower No Lender shall use the proceeds of the be obligated to provide any Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental US Term Loans or effectiveness of such Revolving US Dollar RCF Commitment IncreaseIncreases, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date unless it so agrees in its sole discretion.
(other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). c) Upon each increase in (A) the US Dollar Revolving Credit RCF Commitments pursuant to this Section 2.14Section, (xi) each US Dollar Revolving Credit RCF Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the US Dollar Revolving RCF Commitment Increase (each each, a “US Dollar Revolving RCF Commitment Increase Lender”)) in respect of such increase, and each such Revolving US Dollar RCF Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such US Dollar Revolving Credit RCF Lender’s participations hereunder in outstanding US Dollar RCF Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (ix) participations hereunder in US Dollar RCF Letters of Credit and (iiy) participations hereunder in Swing Line Loans held by each US Dollar Revolving Credit RCF Lender (including each such US Dollar Revolving RCF Commitment Increase Lender) will equal the percentage of the aggregate US Dollar Revolving Credit RCF Commitments of all US Dollar Revolving Credit RCF Lenders represented by such US Dollar Revolving Credit RCF Lender’s Revolving Credit US Dollar RCF Commitment and (yii) if, on the date of such increase, there are any US Dollar Revolving Credit RCF Loans outstanding, such US Dollar Revolving Credit RCF Loans shall on or prior to the effectiveness of such US Dollar Revolving RCF Commitment Increase be prepaid from the proceeds of additional US Dollar Revolving Credit RCF Loans made hereunder (reflecting such increase in US Dollar Revolving Credit RCF Commitments), which prepayment shall be accompanied by accrued interest on the US Dollar Revolving Credit RCF Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.052.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(bd) This Section 2.14 2.25 shall supersede any provisions in Section 2.13 or 10.01 10.1 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (LKQ Corp)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness Borrower shall be in compliance with each of any such Incremental Amendment and at the time any covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term Loan is made (after giving effect thereto)or Revolving Commitment Increase and the last day of the most recent Test Period, the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 20,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 20,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) 200,000,000; provided that the aggregate amount of principal the Revolving Commitment Increases shall not exceed $100,000,000. Each tranche of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided, provided however, that (i) except as provided in preceding clauses (a) and (b), the terms and conditions applicable to a given tranche of Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the any tranche of Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have an obligation the right to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 2.15 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section, provided, however, that no such amendment shall amend, modify or supplement any matter described in the first or second proviso of Section 10.01 without the consent of the requisite Lenders as provided in Section 10.01. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (xa) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each each, a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro Pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 2.15 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches Classes of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Additional Credit Extension Amendment referred to belowbelow (an “Incremental Effective Date”), no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)exist. Each tranche Class of Incremental Term Loans shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal Revolving Credit Commitments after giving effect to any Revolving Commitment Increase (and any concurrent reduction in the Revolving Credit Commitments) shall not exceed the Revolving Credit Commitment Cap and (y) except in the case of Refinancing Incremental Term Loans, on a Pro Forma Basis and after giving effect to the borrowing of all such Incremental Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since Revolving Commitment Increases (assuming for such calculation that any Revolving Commitment Increases are fully drawn), the Closing Date that have not been refinanced with Indebtedness under Senior Secured Leverage Ratio (excluding from the calculation thereof for this Agreement minus (B) purpose the cash proceeds of the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing Term Loans that are the subject of such Permitted Alternative Additional Credit Extension Amendment and other Indebtedness secured by a Lien permitted by Section 7.01(aa) incurred on such Incremental Facilities Indebtedness permitted pursuant Effective Date) for the most recently ended Test Period shall be less than or equal to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)3.75 to 1.0. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit then existing Term Loans and the Term Loans(including with respect to all provisions of Section 8.03), (b) shall not mature earlier than the Maturity Date with respect to any then outstanding Term Loans, (c) shall not have a Weighted Average Life to Maturity that is less than the Tranche B remaining Weighted Average Life to Maturity of the Class of Term Loans (without giving effect with the longest Weighted Average Life to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (cd) shall be treated substantially the same as the Tranche B other then outstanding Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; , subject to the limitation set forth in clause (c) above, provided further, that in the event that the All-In Yield of any Incremental Term Loans, other than Refinancing Incremental Term Loans, is more than 50 basis points greater than the All-In Yield of the Term B Loans, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the All-In Yield for such Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter is no more than that of 50 basis points greater than the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of All-In Yield for the Term Loans prior to the time of such incurrence)B Loans. Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution approved by the Borrower (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that each L/C Issuer (in the case of a Revolving Commitment Increase) and the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Additional Credit Extension Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by Holdings, the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, the applicable L/C Issuer (in the case of an increase of a Revolving Commitment Increase) and the Administrative Agent. The Incremental Additional Credit Extension Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Additional Credit Extension Amendment for an Incremental Term Loan, the borrowing under) any Incremental Additional Credit Extension Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Additional Credit Extension Amendment and borrowing of the applicable Incremental AmendmentTerm Loan) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases and Letters of Credit issued pursuant to the Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (xa) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment its Pro Rata Share and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness Borrower shall be in compliance with each of any such Incremental Amendment and at the time any covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term Loan is made (after giving effect thereto)or Revolving Commitment Increase and the last day of the most recent Test Period, the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amountLoans, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior when added to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal Revolving Commitment Increases, shall not exceed $75,000,000. Each tranche of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or CommitmentsLoans, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments)) and (d) shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Term Loans, provided further that (i) except as provided in preceding clauses (a), (b), (c) and (d), the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have an obligation the right to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 2.15 and otherwise on terms in a form reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (xA) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each each, a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yB) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 2.15 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent U.S. Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent and the Canadian Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), (b) one or more increases in the amount of (x) the U.S. Dollar Revolving Credit Facility Commitments to be made available to the U.S. Borrower (each such increase, a “U.S. Dollar Revolving Facility Commitment Increase”) ), or (cy) one or more increases in the amount of Multicurrency Facility Commitments to be made available to the Alternative Currency Revolving Credit Commitments U.S. Borrower and the Canadian Borrower (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Multicurrency Facility Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan Commitment Increase is made provided (and after giving effect thereto), ) no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent U.S. Borrower shall be in pro forma compliance with each of the covenant covenants set forth in Section 7.14 for 7.12 determined on a Pro forma Basis as of the last day of the most recently ended Test Period then as if the Commitments, after giving effect to such Commitment Increase, had been fully drawn on the last ended calculated on a pro forma basis for day of such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer fiscal quarter of the Parent U.S. Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence)10,000,000. Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)75,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Each U.S. Dollar Facility Commitment Increase shall mature be on the Maturity Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable as the U.S. Dollar Facility Commitments in effect immediately prior to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans U.S. Dollar Facility Commitment Increase. Each Multicurrency Facility Commitment Increase shall be determined by on the Parent Borrower same terms and conditions as the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving Multicurrency Facility Commitments in effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans immediately prior to the time of such incurrence)Multicurrency Facility Commitment Increase. Each notice from the Parent U.S. Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment IncreasesIncrease. Incremental Term Loans may be made, and Revolving (x) U.S. Dollar Facili ty Commitment Increases may be provided, provided by any existing U.S. Dollar Facility Lender (it being understood that no and each existing Term U.S. Dollar Facility Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation the right to provide a portion of any Revolving U.S. Dollar Facility Commitment Increase), in each case on terms permitted in this Section 2.14 2.14) and otherwise (y) Multicurrency Facility Commitment Increases may be provided by any existing Multicurrency Facility Lender (and each existing Multicurrency Facility Lender will have the right to provide a portion of any Multicurrency Facility Commitment Increase, in each case on terms reasonably acceptable to permitted in this Section 2.14); provided that each of the Administrative Agent, or by any other lender the Canadian Agent (any such other lender being called an “Additional Lender”in the case of a Multicurrency Facility Commitment Increase); provided that , the Administrative Agent applicable Swing Line Lender and the applicable L/C Issuers shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases Increase if such consent would be required under Section 10.07(b10.06(a) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender. Each applicable existing Lender shall, by notice to the U.S. Borrower and the Administrative Agent given not later than 10 days after the date of the Administrative Agent’s notice delivered pursuant to the first sentence of this paragraph, either agree to make a portion of any Commitment Increase, or decline to do so (and any existing Lender that does not deliver such notice within such period of 10 days shall be deemed to have declined to do so). In the event that, on the 10th day after the Administrative Agent shall have delivered the notice pursuant to the first sentence of this paragraph, the applicable existing Lenders shall have agreed pursuant to the preceding sentence to provide any Commitment Increase, as applicable, in an aggregate amount less than the amount requested by the U.S. Borrower, any Commitment Increase may be provided by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that each of the Administrative Agent, the Canadian Agent (in the case of a Multicurrency Facility Commitment Increase), the applicable Swing Line Lender and the applicable L/C Issuers shall have consented (not to be unreasonably withheld) to such Additional Lender’s providing such Commitment Increase if such consent would be required under Section 10.06(a) for an assignment of Loans or Commitments, as applicable, to such Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit LenderLender that already has such a Commitment, an increase in such Lender’s applicable Revolving Credit U.S. Dollar Facility Commitment or Multicurrency Facility Commitment, as the case may be) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent U.S. Borrower, the Canadian Borrower (in the case of a Multicurrency Facility Commitment Increase), each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent, and, in the case of a Multicurrency Facility Commitment Increase, the Canadian Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerAgent, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date Closing Date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. Subject to the minimum principal amount requirements specified above in this Section 2.14, no more than four Incremental Facility Closing Dates may be selected by the U.S. Borrower (it being understood and agreed that a U.S. Dollar Facility Commitment Increase and Multicurrency Facility Commitment Increase consummated on the same day shall constitute a single Incremental Facility Closing Date). The Parent U.S. Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases . No Lender shall be used obligated to permanently repay or prepay such Indebtedness)provide any Commitment Increases, unless it so agrees in its sole discretion. Upon each increase in (A) the U.S. Dollar Revolving Credit Facility Commitments pursuant to this Section 2.14Section, (x) each U.S. Dollar Revolving Credit Facility Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the U.S. Dollar Revolving Facility Commitment Increase (each a “U.S. Dollar Revolving Facility Commitment Increase Lender”), and each such Revolving U.S. Dollar Facility Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding U.S. Dollar Facility Letters of Credit and U.S. Dollar Facility Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in U.S. Dollar Facility Letters of Credit and (ii) participations hereunder in U.S. Dollar Facility Swing Line Loans held by each U.S. Dollar Revolving Credit Facility Lender (including each such U.S. Dollar Revolving Facility Commitment Increase Lender) will equal the percentage of the aggregate U.S. Dollar Revolving Credit Facility Commitments of all U.S. Dollar Revolving Credit Facility Lenders represented by such U.S. Dollar Revolving Credit Facility Lender’s Revolving Credit U.S. Dollar Facility Commitment and (yb) if, on the date of such increase, there are any U.S. Dollar Facility Revolving Credit Loans outstanding, such U.S. Dollar Facility Revolving Credit Loans shall on or prior to the effectiveness of such U.S. Dollar Revolving Facility Commitment Increase be prepaid from the proceeds of additional U.S. Dollar Facility Revolving Credit Loans made hereunder (reflecting such increase in U.S. Dollar Revolving Credit Facility Commitments), which prepayment shall be accompanied by accrued interest on the U.S. Dollar Facility Revolving Credit Loans being prepaid and any costs incurred by any U.S. Dollar Facility Lender in accordance with Section 3.05 and (B) 3.05. Upon each increase in the Alternative Currency Revolving Credit Multicurrency Facility Commitments pursuant to this Section 2.14Section, (x) each Alternative Currency Revolving Credit Multicurrency Facility Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Multicurrency Facility Commitment Increase (each an a “Alternative Currency Revolving Multicurrency Facility Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Multicurrency Facility Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Multicurrency Facility Letters of Credit and Multicurrency Facility Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Alternative Currency Multicurrency Facility Letters of Credit and (ii) participations hereunder in Multicurrency Facility Swing Line Loans held by each Alternative Currency Revolving Credit Multicurrency Facility Lender (including each such Alternative Currency Revolving Multicurrency Facility Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Multicurrency Facility Commitments of all Alternative Currency Revolving Credit Multicurrency Facility Lenders represented by such Alternative Currency Revolving Credit Multicurrency Facility Lender’s Revolving Credit Multicurrency Facility Commitment and (yb) if, on the date of such increase, there are any Alternative Currency Multicurrency Facility Revolving Credit Loans outstanding, such Alternative Currency Multicurrency Facility Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Multicurrency Facility Commitment Increase be prepaid from the proceeds of additional Alternative Currency Multicurrency Facility Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Multicurrency Facility Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Multicurrency Facility Revolving Credit Loans being prepaid and any costs incurred by any Multicurrency Facility Lender in accordance with Section 3.05. The Administrative Agent, the Canadian Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the two immediately preceding sentence.
(b) sentences. This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Carters Inc)
Incremental Credit Extensions. (a) The Parent Borrower Company may at any time or from time to time after the Restatement DateSixth Amendment Effective Date but excluding during the Pre-IPO Period, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower Company shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated 7.11(a) determined on a pro forma basis for Pro Forma Basis as of the date of such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (or Revolving Commitment Increase and a certificate from the Chief Financial Officer last day of the Parent Borrower demonstrating most recent Test Period (regardless of whether such covenant is then applicable), in each case, as if such Incremental Term Loans or Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarter of the Company for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 50,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans Loans, the Revolving Commitment Increases and Alternative Incremental Facility Debt (x) after the Sixth Amendment Effective Date and prior to the AS Separation Date shall not exceed $750,000,000 and (y) from and after the AS Separation Date shall not exceed $500,000,000 less the aggregate principal amount (not in excess of $500,000,000) of Incremental Term Loans, Revolving Commitment Increases and Alternative Incremental Facility Debt incurred after the Sixth Amendment Effective Date and prior to the AS Separation Date; provided that the aggregate amount of the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)200,000,000. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Latest Maturity Date with respect to the Tranche B Term Loans (without giving that is in effect to any prior Extensions thereof) (except in on the case of an increase of an existing Class of Loans or Commitments, in which case date such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) Loans are incurred and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower Company and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower Company pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent BorrowerCompany, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerCompany, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall Company will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ai) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (bii) one or more increases in the amount of the Dollar any Class of Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (iA) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiB) upon the effectiveness Borrower shall be in compliance with each of any such Incremental Amendment and at the time any covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term Loan is made (after giving effect thereto)or Revolving Commitment Increase and the last day of the most recent Test Period, the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans (which, for this purpose, shall include Term B-6 Loans but shall not include Term B-7 Loans or Term B-8 Loans) and the Revolving Commitment Increases (other than (x) for the avoidance of doubt those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.17 and (y) Replacement Revolving Commitments) shall not exceed (A) the sum of (ix) $1,500,000,000 (such amount, the “Initial Incremental Amount”) 500,000,000 plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal payments made in respect of the Term Loans as of such Incremental Facility Closing Date (including, in the case of Term B-6 Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since incurred on the Closing First Amendment Effective Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i)only, but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection Term B-2 Term Loans repaid concurrently with the modificationincurrence of Term B-6 Loans on such date and excluding prepayments of Term B-4 Loans, refinancing, refunding, renewal Term B-5 Loans and Term B-6 Loans with the proceeds of Term B-7 Loans or extension thereofTerm B-8 Loans). .
(b) The Incremental Term Loans (ai) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (bii) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans, (iii) shall not have a weighted average life to maturity that is shorter than the weighted average life to maturity with respect to the Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (civ) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (iA) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (iiB) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans .
(without giving effect to any prior Extensions thereofc) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have the right, but not an obligation obligation, to provide a portion of any Revolving Commitment IncreaseIncrease (other than any Replacement Revolving Commitment), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent and the Borrower shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Increases, unless it so agrees.
(d) Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (xi) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Dollar Letters of Credit and (iiB) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yii) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(be) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (West Corp)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Original Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with each of the covenant covenants set forth in Section 7.14 for the Test Period then last ended calculated 7.11 determined on a pro forma basis for Pro Forma Basis as of the last day of the most recent Test Period, in each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (Loans or Revolving Commitment Increases, as applicable, had been outstanding and a certificate from fully borrowed on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 10,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)50,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans and shall have a weighted average life to maturity no shorter than the weighted average life to maturity of the Term Loans (without giving effect except by virtue of amortization of or prepayment of the Term Loans prior to any prior Extensions thereof) (except in the case such date of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increaseddetermination) and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule (subject to clause (b) above) applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided further that (i) if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount that are paid to all Lenders (and not any one Lender) providing such Incremental Term Loans) relating to any Incremental Term Loans exceeds the Applicable Rate (which, for such purposes only, shall not have a Weighted Average Life be deemed to Maturity shorter than that of include all upfront or similar fees or original issue discount payable to all Lenders providing the Tranche B Term Loans (without giving effect Loans) relating to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans immediately prior to the time effectiveness of the applicable Incremental Amendment by more than 0.50%, the Applicable Rate relating to the Term Loans shall be adjusted to be equal to the Applicable Rate (which, for such incurrence)purposes only, shall be deemed to include all upfront or similar fees or original issue discount that are paid to all Lenders (and not any one Lender) providing such Incremental Term Loans) relating to such Incremental Term Loans minus 0.50%. Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender Loan,
(any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withhelda) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
(c) For the avoidance of doubt, the New Term Loans shall not be deemed to have been incurred pursuant to this Section 2.14 for any purpose under this Agreement
Appears in 1 contract
Sources: Credit Agreement (CRC Health CORP)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default below (i) all representations and warranties in Section 4 shall existbe true and correct in all material respects, (ii) at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist or would result therefrom and (iii) upon the effectiveness pro forma Consolidated Net Senior Secured Leverage Ratio of any such Incremental Amendment the Borrower and at the time any its Subsidiaries after giving effect to such Incremental Term Loan is made Loans or Revolving Credit Commitment Increase shall not be greater than 5.50 to 1.00.
(after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent). b) Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is a whole multiple of $5,000,000 which is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence)) and there shall be not more than four requests for Incremental Term Loans or Revolving Credit Commitment Increases. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Term Loans and the aggregate amount of the Revolving Credit Commitment Increases shall not exceed $200,000,000.
(Ac) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans and Revolving Credit Loans made pursuant to the Revolving Credit Commitment Increases (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) in the case of Incremental Term Loans, shall not mature earlier than the Term Loan Maturity Date with respect to or have a weighted average life which is shorter than the Tranche B than the remaining average life of the Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as or less favorably than the Tranche B Term Loans or the Revolving Credit Loans, as the case may be (in each case, including with respect to mandatory and voluntary prepaymentsprepayments and voting rights), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that thereof so long as the applicable margin with respect to such Incremental Term Loans shall is not have a Weighted Average Life to Maturity shorter more than that of 0.25% higher than the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of Applicable Margin for the Term Loans prior to the time of such incurrence). Loan Facility.
(d) Each notice from the Parent Borrower pursuant to this Section 2.25 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Credit Commitment Increases. Incremental Term Loans may be made, and Revolving Credit Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution selected by the Borrower (any such bank or other lender financial institution being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing any such Revolving Credit Commitment Increases if such consent would be required under Section 10.07(b) 10.1 for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Credit Commitment Increases shall become Commitments (or in the case of a Revolving Credit Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this SectionSection 2.25. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) 5.2 and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and the Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Credit Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.142.25, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Credit Commitment Increase (each a “Dollar Revolving Credit Commitment Increase Lender”)) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, the Revolving Credit Lenders (including the Additional Lenders) shall make such Dollar payments as directed by the Administrative Agent in order that the Revolving Credit Loans shall on or prior to are held by the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder Lenders (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender including Additional Lenders) ratably in accordance with Section 3.05 and (B) the Alternative Currency increased Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), interest and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment other payments shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. adjusted accordingly).
(e) The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencethis Section 2.25.
(bf) This Section 2.14 2.25 shall supersede any provisions in Section 2.13 2.18 or 10.01 10.1 to the contrary.
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Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default below (i) all representations and warranties in Section 4 shall existbe true and correct in all material respects, (ii) at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist or would result therefrom and (iii) upon the effectiveness pro forma Consolidated Net Senior Secured Leverage Ratio of any such Incremental Amendment the Borrower and at the time any its Subsidiaries after giving effect to such Incremental Term Loan is made Loans or Revolving Credit Commitment Increase shall not be greater than 5.50 to 1.00.
(after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent). b) Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is a whole multiple of $5,000,000 which is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence)) and there shall be not more than four requests for Incremental Term Loans or Revolving Credit Commitment Increases. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Term Loans and the aggregate amount of the Revolving Credit Commitment Increases shall not exceed $200,000,000.
(Ac) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans and Revolving Credit Loans made pursuant to the Revolving Credit Commitment Increases (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) in the case of Incremental Term Loans, shall not mature earlier than the Term Loan Maturity Date with respect to or have a weighted average life which is shorter than the Tranche B than the remaining average life of the Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as or less favorably than the Tranche B Term Loans or the Revolving Credit Loans, as the case may be (in each case, including with respect to mandatory and voluntary prepaymentsprepayments and voting rights), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that thereof so long as the applicable margin with respect to such Incremental Term Loans shall is not have a Weighted Average Life to Maturity shorter more than that of 0.25% higher than the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of Applicable Margin for the Term Loans prior to the time of such incurrence). Loan Facility.
(d) Each notice from the Parent Borrower pursuant to this Section 2.25 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Credit Commitment Increases. Incremental Term Loans may be made, and Revolving Credit Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution selected by the Borrower (any such bank or other lender financial institution being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing any such Revolving Credit Commitment Increases if such consent would be required under Section 10.07(b) 10.1 for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Credit Commitment Increases shall become Commitments (or in the case of a Revolving Credit Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this SectionSection 2.25. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) 5.2 and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and the Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Credit Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.142.25, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Credit Commitment Increase (each a “Dollar Revolving Credit Commitment Increase Lender”)) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, the Revolving Credit Lenders (including the Additional Lenders) shall make such Dollar payments as directed by the Administrative Agent in order that the Revolving Credit Loans shall on or prior to are held by the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder Lenders (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender including Additional Lenders) ratably in accordance with Section 3.05 and (B) the Alternative Currency increased Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), interest and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment other payments shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. adjusted accordingly).
(e) The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencethis Section 2.25.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
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Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) upon both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to belowbelow (including, no Default or Event in the case of Default shall exist, (ii) at the time that any such Incremental Term Loan is made (and Loan, after giving effect thereto), no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated 7.1 determined on a pro forma basis for as of the date of the making of such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (or Revolving Credit Commitment Increase and a certificate from the Chief Financial Officer last day of the Parent Borrower demonstrating most recent fiscal quarter for which financial statements have been delivered hereunder, in each case, as if such Incremental Term Loans or Revolving Credit Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarter for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 20,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 20,000,000 if (x) such amount represents all remaining availability under the limit set forth in the next sentencesentence or (y) if otherwise agreed to by the Administrative Agent). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Credit Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)50,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Term Loan Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments, it being understood that mandatory prepayments shall be applied ratably to the Incremental Term Loans based on the aggregate principal amount of Term Loans and Incremental Term Loans then outstanding and in accordance with the terms of Section 2.12 except to the extent the terms of the relevant Incremental Amendment (as defined below) shall provide that such Incremental Term Loans shall not be subject to mandatory prepayments or be prepaid at a rate or percentage less than is otherwise applicable to prepayments of Term Loans pursuant to Section 2.12), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Credit Commitment Increases. Incremental Term Loans may be made, and Revolving Credit Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Credit Commitment Increases if such consent would be required under Section 10.07(b) 10.06 for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Credit Commitment Increases shall become Commitments (or in the case of a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit LenderCommitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Credit Documents, executed (in the case of such amendment to this Agreement) by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Any Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 5.2 (it being understood that all references to “the date of such Credit Extensionextension of credit” or similar language in such Section 4.02 5.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall may use the proceeds of the Incremental Term Loans and Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Credit Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (xa) each Dollar Lender with a Revolving Credit Lender Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Credit Commitment Increase (each a “Dollar Revolving Credit Commitment Increase Lender”)) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Lender with a Revolving Credit Lender Commitment (including each such Alternative Currency Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Lenders with Revolving Credit Lenders Commitments represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Credit Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.052.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 2.24 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower Company may at any time or from time to time after the Restatement DateFourth Amendment Effective Date but excluding during the Pre-IPO Period, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness Company shall be in compliance with each of any such Incremental Amendment the covenants set forth in Section 7.11(a) and at (b) determined on a Pro Forma Basis as of the time any date of such Incremental Term Loan is made (after giving effect thereto)or Revolving Commitment Increase and the last day of the most recent Test Period, the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increases, as applicable, had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating Company for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 50,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans Loans, the Revolving Commitment Increases and Alternative Incremental Facility Debt (x) after the Fourth Amendment Effective Date and prior to the AS Separation Date shall not exceed $750,000,000 and (y) from and after the AS Separation Date shall not exceed $500,000,000 less the aggregate principal amount (not in excess of $500,000,000) of Incremental Term Loans, Revolving Commitment Increases and Alternative Incremental Facility Debt incurred after the Fourth Amendment Effective Date and prior to the AS Separation Date; provided that the aggregate amount of the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)200,000,000. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Latest Maturity Date with respect to the Tranche B Term Loans (without giving that is in effect to any prior Extensions thereof) (except in on the case of an increase of an existing Class of Loans or Commitments, in which case date such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) Loans are incurred and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower Company and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower Company pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent BorrowerCompany, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerCompany, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall Company will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower Company may at any time or from time to time after the Restatement Sixth Amendment Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower Company shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated 7.11(a) determined on a pro forma basis for Pro Forma Basis as of the date of such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (or Revolving Commitment Increase and a certificate from the Chief Financial Officer last day of the Parent Borrower demonstrating most recent Test Period (regardless of whether such covenant is then applicable), in each case, as if such Incremental Term Loans or Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarter of the Company for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 50,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans Loans, the Revolving Commitment Increases and Alternative Incremental Facility Debt (x) after the Sixth Amendment Effective Date and prior to the AS Separation Date shall not exceed $750,000,000 and (y) from and after the AS Separation Date shall not exceed $500,000,000 less the aggregate principal amount (not in excess of $500,000,000) of Incremental Term Loans, Revolving Commitment Increases and Alternative Incremental Facility Debt incurred after the Sixth Amendment Effective Date and prior to the AS Separation Date; provided that the aggregate amount of the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)200,000,000. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Latest Maturity Date with respect to the Tranche B Term Loans (without giving that is in effect to any prior Extensions thereof) (except in on the case of an increase of an existing Class of Loans or Commitments, in which case date such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) Loans are incurred and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower Company and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower Company pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that (i) the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional LenderLender and (ii) Purchasing Affiliated Lenders may not provide any Revolving Commitment Increases. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent BorrowerCompany, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerCompany, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall Company will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower Company may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower Company shall be in pro forma compliance with the covenant set forth in Section 7.14 for 7.11 determined on a Pro Forma Basis as of the last day of the most recent Test Period then last ended calculated on a pro forma basis for prior to the applicable Incremental Facility Closing Date, in each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans or Revolving Commitment Increase, as applicable, had been outstanding on the Chief Financial Officer last day of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)Test Period. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 20,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 20,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum greater of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus 150,000,000 and (ii) the excess, if any, additional aggregate amount of (x) 0.65 times Consolidated EBITDA secured Indebtedness which would be permitted to be incurred as of the Parent Borrower for the Test Period then last ended prior to the any date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) assuming for this purpose that the Initial Incremental Amount plus (iii) the aggregate full amount of principal any Revolving Credit Increase had been utilized as of Term Loans prepaid pursuant such date) such that, after giving Pro Forma Effect to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) such incurrence (and any refinancing of other transactions consummated on such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(idate), but excluding the principal amount Senior Secured Leverage Ratio for the immediately preceding Test Period would not be greater than 4.00 to 1.0. Each tranche of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or CommitmentsLoans, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity then in effect for the Term Loans and (d) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), ; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower Company and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower Company pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have an obligation the right, but no obligation, to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent and each L/C Issuer (in the case of a Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent BorrowerCompany, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerCompany, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall Company will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments to be made available to the Borrower (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made or Revolving Commitment Increase is provided (and after giving effect thereto), ) no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with each of the covenant covenants set forth in Section 7.14 for the Test Period then last ended calculated 7.12 determined on a pro Pro forma basis for Basis as of the last day of the most recently ended fiscal quarter of the Borrower as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 10,000,000 (provided that (i) with respect to any tranche of Incremental Term Loans that will not be incorporated into a tranche of existing Term Loans, such amount may not be less than $20,000,000 and (ii) such amount may be less than a Dollar Amount of $100,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)125,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Term Loan Maturity Date with respect (but may have nominal amortization prior to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increaseddate) and (c) except as set forth above, shall be treated substantially the same as (and in any event no more favorably than) the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of maturing after the Term Loans to Loan Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Term Loan Maturity Date and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall may be determined by priced differently than the Parent Borrower and Term Loans; provided, however, that the lenders thereof; provided that Applicable Rate for the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than be greater that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of Applicable Rate for the Term Loans prior plus 0.25% (and the Applicable Rate for the Term Loans shall be increased to the time of such incurrenceextent to achieve the foregoing). Each notice from the Parent Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have an obligation the right to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have an obligation the right to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases Increase if such consent would be required under Section 10.07(b10.06(a) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender. Each existing Lender shall, by notice to the Borrower and the Administrative Agent given not later than 10 days after the date of the Administrative Agent’s notice delivered pursuant to the first sentence of this paragraph, either agree to make a portion of any Incremental Term Loan or provide a portion of any Revolving Commitment Increase, or decline to do so (and any existing Lender that does not deliver such notice within such period of 10 days shall be deemed to have declined to do so). In the event that, on the 10th day after the Administrative Agent shall have delivered the notice pursuant to the first sentence of this paragraph, the existing Lenders shall have agreed pursuant to the preceding sentence to make Incremental Term Loans or to provide any Revolving Commitment Increase, as applicable, in an aggregate amount less than the amount requested by the Borrower, the Incremental Term Loans may be made, and any Revolving Commitment Increase may be provided, by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increase if such consent would be required under Section 10.06(a) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerAgent, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date Closing Date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. Subject to the minimum principal amount requirements specified above in this Section 2.14, no more than four Incremental Facility Closing Dates may be selected by the Borrower. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees in its sole discretion. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (xa) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) . This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Carter William Co)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each Section 2.24 of the Lenders)Credit Agreement is amended by (i) replacing the reference to “$50,000,000” with a reference to “$200,000,000” and (ii) inserting the following at the end of the fourth sentence thereof: (provided that (1) if, request (a) one or more additional tranches following the incurrence of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “any Incremental Term Loans”), (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent). Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Credit Commitment Increases shall become Commitments would exceed $50,000,000, then (or in x) if the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in Effective Yield for such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds as of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans exceeds the Effective Yield then applicable to any tranche of outstanding Term Loans or Incremental Term Loans (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Term Loans and Incremental Term Loans shall automatically be increased by the Term Loan Yield Differential at each level in the pricing grid, effective upon the making of the Incremental Term Loans and (y) the weighted average life to maturity of the Incremental Term Loans shall be no shorter than the weighted average life to maturity of the Term Loans and (2) if, following the effectiveness of such any Revolving Credit Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds aggregate amount of Incremental Term LoansRevolving Credit Commitments would exceed $75,000,000, then if the Effective Yield for the Revolving Credit Commitments effected pursuant to such Revolving Credit Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent Increase as of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds effective date of such Revolving Credit Commitment Increase exceeds the sum of the Effective Yield then applicable to any tranche of outstanding Term Loans or Incremental Term Loans or Revolving Commitment Increases shall be used and 0.50% (the amount of such excess being referred to permanently repay or prepay such Indebtedness). Upon each increase in (A) herein as the Dollar “Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase LenderYield Differential”), then the Applicable Margin then in effect for such Term Loans and each such Revolving Commitment Increase Lender will Incremental Term Loans shall automatically and without further act be deemed to have assumed, a portion of such Dollar increased by the Revolving Credit Lender’s participations hereunder Yield Differential at each level in outstanding Dollar Letters of Credit and Swing Line Loans such thatthe pricing grid, after giving effect to each such deemed assignment and assumption of participations, effective upon the percentage effectiveness of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit CommitmentsIncrease), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); provided that that
(i) upon the effectiveness of any Incremental Amendment referred to below, no Default under Section 8.01(a) or Event of Default shall exist, exist and (ii) at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default under Section 8.01(a) or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)exist. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 50,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)1,000,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term LoansB-1 Loans made on the Closing Date, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term B-1 Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature made on the Maturity Closing Date of such Class being increased) and (c) shall be treated substantially the same as the Tranche B Term B-1 Loans made on the Closing Date (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the such Term B-1 Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term B-1 Loans (without giving effect to any prior Extensions thereof) made on the Closing Date (except by virtue of amortization or prepayment of the such Term B-1 Loans prior to the time of such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.in
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Sources: Credit Agreement (Avaya Inc)
Incremental Credit Extensions. (a) The Parent Either Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), (i) request (a) one or more additional tranches of term loans or(the commitments thereof, if satisfactory to the Administrative Agent“Incremental Term Loan Commitment”, an increase of an existing tranche of Term Loans (the loans thereunder, the “Incremental Term Loans” and a Lender making such loans, an “Incremental Term Lender”), ) or (bii) request one or more increases in the amount of the Dollar Revolving Credit Loan Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Loan Commitment Increase”); , provided that (iw) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and exist, (iiix) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent U.S. Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated Total Leverage Covenant determined on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer Pro Forma Basis as of the Parent Borrower demonstrating compliance with end of the most recently completed fiscal quarter for which the financial statements and certificates required by Section 8.1(a) or (b), as the case may be, have been delivered, in each case, as if such Section calculated in reasonable detail shall be provided to the Administrative Agent). Each tranche of Incremental Term Loans or Revolving Loan Commitment Increases, as applicable, had been outstanding and each Revolving Commitment Increase shall be in an aggregate principal amount fully borrowed throughout such period (whether or not a Compliance Date occurred on the last day of such most recently completed fiscal quarter); provided, that is not less than a Dollar Amount for purposes of $100,000,000 determining compliance with the Total Leverage Covenant under this clause (provided that such amount may be less than a Dollar Amount of $100,000,000 if such amount represents all remaining availability under the limit set forth in the next sentencex). Notwithstanding anything to the contrary herein, the aggregate amount Net Cash Proceeds actually received by any Loan Party in respect of the such Incremental Term Loans and the Revolving Commitment Increases Facility shall not exceed (A) the sum be included as cash or Cash Equivalents for purposes of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus clause (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date definition of determination and calculated on a pro forma basis in accordance with Section 1.10 over “Total Leverage Ratio”, (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Incremental Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since or Revolving Loan Commitment Increases incurred at any time shall not exceed the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Maximum Incremental Facilities Indebtedness incurred under Section 7.03(iAmount as in effect at such time and (z) Incremental Term Loans may be denominated in Dollars or Euros, and Revolving Loan Commitment Increases shall be denominated in Dollars (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of it being understood that any such refinancing indebtedness represented by unpaid accrued interest Revolving Loan Commitment Increase may be utilized in Available Currencies as and premium on to the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereofextent provided herein). .
(b) The Incremental Term Loans (a) shall rank pari passu in right of payment and pari passu or junior (on a second lien, subordinated basis to the Obligations) in right of security with the Revolving Credit Loans and the Term Loans (and if such Incremental Term Loans have rights to share in the Collateral on a second lien, subordinated basis to, the Obligations, then (x) the Administrative Agent and the existing Lenders and Additional Lenders providing such Incremental Term Loans, or an appointed agent or other representative on their behalf, shall enter into an Intercreditor Agreement and (y) at the request of the Administrative Agent, such Incremental Term Loans may be documented in a separate credit agreement rather than pursuant to an amendment to this Agreement); provided, that the European Borrower may incur Incremental Term Loans and/or Revolving Loan Commitment Increases, which in respect of an amount not to exceed $125,000,000 (or for this purpose, using the Dollar Equivalent of all amounts expressed in Euros), may have the benefit of guarantees of Foreign Subsidiaries and may be secured by foreign collateral that does not secure the Obligations, (b) shall not mature earlier than the Latest Maturity Date with respect and shall have a Weighted Average Life to Maturity no shorter than the Tranche B Weighted Average Life to Maturity of the Term Loans (without giving effect except by virtue of amortization of or prepayment of the Term Loans prior to any prior Extensions thereof) (except in the case such date of an increase of an existing Class of Loans or Commitmentsdetermination), in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), Loans; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule (subject to clause (b) above) applicable to the Incremental Term Loans shall be determined by the Parent applicable Borrower and the lenders thereof; provided that provided, further, that, only with respect to Incremental Term Loans ranking pari passu in right of security with the Revolving Loans and the Term Loans made on the Closing Date, if the Applicable Margin above the applicable Fixed Rate in respect of the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of exceeds the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment Applicable Margin above the applicable Fixed Rate in respect of the Term Loans by more than 0.50%, the Applicable Margin above the applicable Fixed Rate in respect of the Term Loans shall be adjusted to be equal to the Applicable Margin above the applicable Fixed Rate in respect of the Incremental Term Loans minus 0.50%, effective upon the making of the Incremental Term Loans; provided further that in determining the Applicable Margin, (x) original issue discount or upfront fees (which shall be deemed to constitute a like amount of original issue discount) paid by the respective Borrower to the Incremental Term Lenders under the Incremental Term Loans and the Term Loans in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the Applicable Margin in respect of the Term Loans that become effective subsequent to the Closing Date but prior to the time of such incurrence). Incremental Term Loans are borrowed shall also be included in such calculations; provided further that if the Fixed Rate in respect of the Incremental Term Loans includes a floor greater than the floor applicable to the Term Loans, such excess amount shall be equated to interest margin for purposes of determining any increase to the Applicable Margin in respect of the Term Loans.
(c) Any Revolving Loan Commitment Increases shall be subject to the terms and conditions applicable to Revolving Loans in this Agreement and each other Loan Document; provided, that if the Applicable Margin above the applicable Fixed Rate in respect of a Revolving Loan Commitment Increase exceeds the Applicable Margin above the applicable Fixed Rate in respect of the Revolving Loans, the Applicable Margin above the applicable Fixed Rate in respect of the Revolving Loans shall be adjusted to be equal to the Applicable Margin above the applicable Fixed Rate in respect of the Revolving Loan Commitment Increase, effective upon the incurrence of the Revolving Loan Commitment Increases; provided further that in determining the Applicable Margin, (x) original issue discount or upfront fees (which shall be deemed to constitute a like amount of original issue discount) paid by the respective Borrower to the lenders of any Revolving Loan Commitment Increase and the Revolving Loans shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the Applicable Margin in respect of the Revolving Loans that become effective subsequent to the Closing Date but prior to the time of such Revolving Loan Commitment Increase shall also be included in such calculations; provided further that if the Fixed Rate in respect of a Revolving Loan Commitment Increase includes a floor greater than the floor applicable to the Revolving Loans, such excess amount shall be equated to interest margin for purposes of determining any increase to the Applicable Margin in respect of the Revolving Loans.
(d) Each notice from the Parent any Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Loan Commitment Increases. Except as provided above, all terms and documentation with respect to Incremental Term Loans which differ from those applicable to the Term Loans shall be reasonably satisfactory to the Administrative Agent.
(e) Incremental Term Loans may be made, made and Revolving Loan Commitment Increases may be provided, by any existing Lender or any Additional Lender (it being understood provided that no existing Term Lender will have an obligation shall be obligated to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation or to provide a portion of any Revolving Loan Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent2.15, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and, in respect any Revolving Loan Commitment Increases, the Issuing Lender and Swingline Lender shall have consented (such consent not to be unreasonably withheldwithheld or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Loan Commitment Increases if such consent would be required under Section 10.07(b) 13.4 for an assignment of Loans or Revolving Credit Loan Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Loan Commitment Increases shall become Commitments (or in the case of a Revolving Loan Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Loan Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent Borrowerapplicable Borrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent U.S. Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 Sections 7.2(a) through (c) (it being understood that all references to “the date of such Credit Extension” extension of credit or similar language in such Section 4.02 7.2(b) and (unless waived by the Additional Lender) Section 7.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall Borrowers will use the proceeds of the Incremental Term Loans and Revolving Loan Commitment Increases for any purpose not prohibited by this Agreement; provided that .
(if) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Upon each increase in (A) the Dollar Revolving Credit Loan Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Loan Commitment Increase (each a “Dollar Revolving Loan Commitment Increase Lender”)) in respect of such increase, and each such Revolving Loan Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Swingline Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Loan Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Loan Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Loan Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Loan Commitment Increase either be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder or assigned to a Revolving Loan Commitment Increase Lender (in each case, reflecting such increase in Dollar Revolving Credit Loan Commitments, such that Revolving Loans are held ratably in accordance with each Revolving Lender’s pro rata share, after giving effect to such increase), which prepayment or assignment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05prepaid. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(bg) This Section 2.14 2.15 shall supersede any provisions in Section 2.13 2.8 or 10.01 13.12 to the contrary.
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Incremental Credit Extensions. (a) The Parent Borrower Company may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of Dollar denominated term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments relating to Dollar denominated loans to be made available to the Company (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower Company shall be in pro forma compliance with each of the covenant covenants set forth in Section 7.14 for the Test Period then last ended calculated 7.11 determined on a pro forma basis for Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Company as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from Loans had been outstanding on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating Company for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that (i) with respect to any tranche of Incremental Term Loans that will not be incorporated into a tranche of existing Term Loans, such amount may not be less than $50,000,000 and (ii) such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)200,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of Facility (but may have nominal amortization prior to such Class being increaseddate) and (c) except as set forth above, shall be treated substantially the same as (and in any event no more favorably than) the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of maturing after the Maturity Date with respect to the Term Loans Loan Facility may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date with respect to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Term Loan Facility and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall may be determined by the Parent Borrower and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter priced differently than that of the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence)Loans. Each notice from the Parent Borrower Company pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have an obligation the right to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have an obligation the right to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases Increase if such consent would be required under Section 10.07(b10.07(a) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender. Each existing Lender shall, by notice to the Company and the Administrative Agent given not later than 10 days after the date of the Administrative Agent’s notice delivered pursuant to the first sentence of this paragraph, either agree to make a portion of any Incremental Term Loan or provide a portion of any Revolving Commitment Increase, or decline to do so (and any existing Lender that does not deliver such notice within such period of 10 days shall be deemed to have declined to do so). In the event that, on the 10th day after the Administrative Agent shall have delivered the notice pursuant to the first sentence of this paragraph, the existing Lenders shall have agreed pursuant to the preceding sentence to make Incremental Term Loans or to provide any Revolving Commitment Increase, as applicable, in an aggregate amount less than the amount requested by the Company, the Incremental Term Loans may be made, and any Revolving Commitment Increase may be provided, by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increase if such consent would be required under Section 10.07(a) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by Holdings, the Parent BorrowerCompany, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerAgent, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date Closing Date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. Subject to the minimum principal amount requirements specified above in this Section 2.14, no more than eight Incremental Facility Closing Dates may be selected by the Company. The Parent Borrower shall Company will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (xa) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
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Incremental Credit Extensions. (a) The Parent Borrower Company may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ax) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (by) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) upon both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to belowbelow (including, in the case of any Incremental Term Loan, after giving effect thereto), no Default or Event of Default shall exist, (ii) at the time that any such Incremental Term Loan is made (and after giving effect thereto), no Default or Event of Default shall exist and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower Company shall be in pro forma compliance with the covenant set forth in Section 7.14 for 7.01 and the Test Period then last ended calculated Consolidated Leverage Ratio shall not exceed 4.25:1.00, in each case determined on a pro forma basis as of the last day of the most recent fiscal quarter for which financial statements have been delivered hereunder, in each case, as if such Incremental Amendment and/or Incremental Term Loan Loans or Revolving Credit Commitment Increases, as applicable, had been outstanding, and in accordance with Section 1.10 (and a certificate from the Chief Financial Officer case of any Revolving Credit Commitment Increase, fully drawn, on the Parent Borrower demonstrating last day of such fiscal quarter for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 20,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 20,000,000 if (x) such amount represents all remaining availability under the limit set forth in the next sentencesentence or (y) if otherwise agreed to by the Administrative Agent). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Credit Commitment Increases shall not exceed $300,000,000.
(Ab) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof). The Incremental Term Loans (ai) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (bii) shall not mature earlier than the Term Loan Maturity Date with respect Date, (iii) shall not have a weighted average life to maturity shorter than the Tranche B weighted average life to maturity of the Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (civ) except as set forth in Section 2.22(a), shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments, it being understood that mandatory prepayments shall be applied ratably to the Incremental Term Loans based on the aggregate principal amount of Term Loans and Incremental Term Loans then outstanding and in accordance with the terms of Section 2.10 except to the extent the terms of the relevant Incremental Amendment (as defined below) shall provide that such Incremental Term Loans shall not be subject to mandatory prepayments or be prepaid at a rate or percentage less than is otherwise applicable to prepayments of Term Loans pursuant to Section 2.10), provided that (i) if the Effective Yield for such Incremental Term Loans as of the date of incurrence of such Incremental Term Loans exceeds the sum of the Effective Yield then applicable to any tranche of outstanding Term Loans or Incremental Term Loans and 0.50% (the amount of such excess being referred to herein as the “Term Loan Yield Differential”), then the Applicable Margin then in effect for such Term Loans and Incremental Term Loans shall automatically be increased by the Term Loan Yield Differential (at each level in the pricing grid), effective upon the making of the Incremental Term Loans, (ii) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (iiiii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower Company and the lenders thereof; provided that the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans .
(without giving effect to any prior Extensions thereofc) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence). Each notice from the Parent Borrower Company pursuant to this Section 2.22 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Credit Commitment Increases. Incremental Term Loans may be made, and Revolving Credit Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent and, with respect to Revolving Credit Commitment Increases, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Credit Commitment Increases if such consent would be required under Section 10.07(b) 10.06 for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. .
(d) Commitments in respect of Incremental Term Loans and Revolving Credit Commitment Increases shall become Commitments (or in the case of a Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit LenderCommitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed (in the case of such amendment to this Agreement) by the Parent BorrowerCompany, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The .
(e) Any Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent BorrowerCompany, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 5.02 (it being understood that all references to “the date of such Credit Extensionextension of credit” or similar language in such Section 4.02 5.02 shall be deemed to refer to the effective date of such Incremental Amendment) ), of the payment of any fees payable in connection therewith, the delivery of any documentation required under Section 6.05 and such other conditions as the parties thereto shall agree. The Parent Borrower shall Borrowers may use the proceeds of the Incremental Term Loans and Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Credit Commitment Increases shall be used to permanently repay or prepay such Indebtedness). Increases, unless it so agrees.
(f) Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.142.22, (xi) each Dollar Lender with a Revolving Credit Lender Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Credit Commitment Increase (each a “Dollar Revolving Credit Commitment Increase Lender”)) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Lender with a Revolving Credit Lender Commitment (including each such Alternative Currency Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Lenders with Revolving Credit Lenders Commitments represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (yii) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Credit Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.052.19. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(bg) This Section 2.14 2.22 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Third Amendment Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ai) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, or an increase in one or more existing tranches of an existing tranche of Term Loans term loans (the “Incremental Term Loans”), ) or (bii) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Multicurrency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Credit Commitment Increase”); provided that (ix) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made or any Revolving Credit Commitment Increase becomes effective (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiy) upon the effectiveness of any such Incremental Amendment and at the time of any such request and as of the date an Incremental Term Loan is made (after giving effect thereto)made, the Parent Borrower shall would be in pro forma compliance with the covenant set forth in Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)7.1. Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, after the Tranche C Funding Date, the aggregate amount of the Incremental Term Loans Loans, when added to the aggregate amount of Revolving Credit Commitment Increases, shall not exceed $275,000,000, and the aggregate amount of Revolving Credit Commitment Increases shall not exceed (A) $150,000,000; provided however that each of such amounts shall automatically increase on the sum of (i) $1,500,000,000 (such amount, Non-Extending Revolving Credit Termination Date on a dollar-for-dollar basis by the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA amount of the Parent Borrower for the Test Period then last ended prior to the date of determination Non-Extending Dollar Revolving Credit Commitments and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date Non-Extending Multicurrency Revolving Credit Commitments that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium terminated on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)Non-Extending Revolving Credit Termination Date. The Each tranche of Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the any existing Term Loans, (b) shall not mature earlier than the Maturity Date maturity date with respect to the Tranche B any existing Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or CommitmentsLoans, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B existing Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided, provided that (i) except as provided in preceding clauses (a), (b) and (c), the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided that the .
(b) Each series of Incremental Term Loans borrowed pursuant to this Section shall not have be a Weighted Average Life to Maturity shorter than that of the Tranche B separate Incremental Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of such incurrence)Loan Facility. Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Credit Commitment Increases. Incremental Term Loans may be made, and Revolving Credit Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such . Incremental Term Loans or providing such shall be effected, and Revolving Credit Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans shall become Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments hereunder (or or, in the case of a Revolving Credit Commitment Increase to be provided by an existing Dollar Revolving Credit Lender or Multicurrency Revolving Credit Lender, as applicable, an increase in such Lender’s applicable Dollar Revolving Credit CommitmentCommitment or Multicurrency Revolving Credit Commitments, as applicable) under this Agreement and each Additional Lender shall become a Lender hereunder pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. In addition, the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such Incremental Amendment (including confirmation that the obligations of the Loan Parties with respect to an increase to the existing Dollar Revolving Loan Commitments or Multicurrency Revolving Credit Commitments, as applicable, (and any Loans or extensions of credit thereunder) or an Incremental Term Loan are secured by the Collateral and the perfection and priority of the Administrative Agent’s Lien in such Collateral has not been affected by a Revolving Credit Commitment Increase or the Incremental Term Loans as applicable). The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 5.2 (it being understood that all references to “the date of such Credit Extensionextension of credit” or similar language in such Section 4.02 5.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower No Lender shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for be obligated to provide any purpose not prohibited by this Agreement; provided that (i) to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Credit Commitment Increases shall be used to permanently repay or prepay such Indebtedness). unless it so agrees.
(c) Upon each increase in (A) the Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments, as applicable, pursuant to this Section 2.14that occur either prior to the Tranche C Funding Date or at any time after the termination of all Non-Extending Dollar Revolving Credit Commitments or Non-Extending Multicurrency Revolving Credit Commitments, as the case may be, (xi) each Dollar Revolving Credit Lender or Multicurrency Revolving Credit Lender, as applicable, immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Credit Commitment Increase (each each, a “Dollar Revolving Credit Commitment Increase Lender”)) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s or Multicurrency Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit, Multicurrency Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (ix) participations hereunder in Dollar Letters of Credit or Multicurrency Letters of Credit and (iiy) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender or Multicurrency Revolving Credit Lender, as applicable (including each such Dollar Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments of all Dollar Revolving Credit Lenders or Multicurrency Revolving Credit Commitments, as applicable, represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yii) if, on the date of such increase, there are any Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Credit Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans or Multicurrency Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments or Multicurrency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Multicurrency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.052.21. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(bd) From and after the Tranche C Funding Date, Revolving Credit Commitment Increases (including with respect to the Tranche C Funding Date Incremental Revolving Credit Commitments) may only be made with respect to Extending Dollar Revolving Credit Commitments or Extending Multicurrency Revolving Credit Commitments, and any adjustments or reallocations with respect thereto for so long as Non-Extending Dollar Revolving Credit Commitments or Non-Extending Multicurrency Revolving Credit Commitments, as the case may be, are outstanding, shall be governed by Section 2.26(b)(i) and (b)(ii). The terms of any Extending Dollar Revolving Credit Commitments or Extending Multicurrency Revolving Credit Commitments created pursuant to any Revolving Credit Commitment Increase shall be identical to the Extending Dollar Revolving Credit Commitments or Extending Multicurrency Revolving Credit Commitments, as the case may be, then outstanding under this Agreement, including without limitation with respect to the Applicable Margin applicable thereto.
(e) This Section 2.14 2.25 shall supersede any provisions in Section 2.13 or 10.01 10.1 to the contrary.
(f) With respect to any Incremental Term Loans created hereunder, if the initial yield on such Incremental Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin applicable to such Incremental Term Loans above the Eurocurrency Rate, the Euribor Base Rate or the Eurocurrency Australian Dollar Base Rate, as the case may be and (y) if such Incremental Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower for doing so, in each case in excess of 0.50% (the amount of such discount or fee in excess of 0.50%, expressed as a percentage of such Incremental Term Loans, being referred to herein as “Upfront Fees”), the amount of such Upfront Fees divided by the lesser of (A) the average life to maturity of such Incremental Term Loans and (B) four) exceeds the Applicable Margin then in effect for Tranche C Term Loans that are Eurocurrency Loans (the amount of such excess being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Tranche C Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans. If the lowest permissible rate applicable to such Incremental Term Loans that are Eurocurrency Loans is greater than 1.5% per annum or the Eurodollar Floor Amount, as applicable, then the difference between such lowest permissible rate and 1.5% per annum or the Eurodollar Floor Amount, as applicable, shall be used in calculating the Yield Differential for purposes of this clause (f).
Appears in 1 contract
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist and (iiiii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with each of the covenant covenants set forth in Section 7.14 for the Test Period then last ended calculated 7.11 determined on a pro forma basis for Pro Forma Basis as of the last day of the most recent Test Period, in each case, as if such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (Loans or Revolving Commitment Increases, as applicable, had been outstanding and a certificate from fully borrowed on the Chief Financial Officer last day of such fiscal quarter of the Parent Borrower demonstrating for testing compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 10,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)50,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans and shall have a weighted average life to maturity no shorter than the weighted average life to maturity of the Term Loans (without giving effect except by virtue of amortization of or prepayment of the Term Loans prior to any prior Extensions thereof) (except in the case such date of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increaseddetermination) and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule (subject to clause (b) above) applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided further that (i) if the Incremental Term Loans shall not have a Weighted Average Life to Maturity shorter than that of the Tranche B Term Loans Applicable Rate (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment of the Term Loans prior to the time of which, for such incurrence). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be madepurposes only, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Term Lender will have an obligation to make a portion of any Incremental Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement), executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject deemed to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (it being understood that include all references to “the date of such Credit Extension” upfront or similar language in such Section 4.02 fees or original issue discount
(a) shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (yb) if, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Transcultural Health Develpment, Inc.)
Incremental Credit Extensions. (a) The Parent Borrower may at any time or from time to time after the Restatement Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche of Term Loans (the “Incremental Term Loans”), ) or (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such increase, an “Alternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist, (ii) exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto), ) no Default or Event of Default shall exist exist, (ii) the Borrower shall be in compliance with the covenants set forth in Section 7.11 for the Test Period in effect at the applicable Incremental Facility Closing Date (it being understood that if the applicable Incremental Facility Closing Date is to occur prior to the date the December 31, 2007 Test Period has become effective, the levels set forth in Section 7.11 for the December 31, 2007 Test Period shall be deemed to apply), as determined on a Pro Forma Basis and (iii) upon the effectiveness of any such Incremental Amendment and at the time any such Incremental Term Loan is made (after giving effect thereto), the Parent Borrower shall be in pro forma compliance with the covenant set forth in Section 7.14 Senior Secured Leverage Ratio for the Test Period then last ended calculated Borrower would be not greater than 4.25:1 as determined on a pro forma basis for such Incremental Amendment and/or Incremental Term Loan in accordance with Section 1.10 (and a certificate from the Chief Financial Officer of the Parent Borrower demonstrating compliance with such Section calculated in reasonable detail shall be provided to the Administrative Agent)Pro Forma Basis. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $100,000,000 25,000,000 (provided that such amount may be less than a Dollar Amount of $100,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed (A) the sum of (i) $1,500,000,000 (such amount, the “Initial Incremental Amount”) plus (ii) the excess, if any, of (x) 0.65 times Consolidated EBITDA of the Parent Borrower for the Test Period then last ended prior to the date of determination and calculated on a pro forma basis in accordance with Section 1.10 over (y) the Initial Incremental Amount plus (iii) the aggregate amount of principal of Term Loans prepaid pursuant to Sections 2.05(b)(i) and 2.05(b)(iii) since the Closing Date that have not been refinanced with Indebtedness under this Agreement minus (B) the aggregate amount of Permitted Alternative Incremental Facilities Indebtedness incurred under Section 7.03(i) (and any refinancing of such Permitted Alternative Incremental Facilities Indebtedness permitted pursuant to Section 7.03(i), but excluding the principal amount of any such refinancing indebtedness represented by unpaid accrued interest and premium on the indebtedness being refinanced plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with the modification, refinancing, refunding, renewal or extension thereof)150,000,000. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except in the case of an increase of an existing Class of Loans or Commitments, in which case such Incremental Term Loan or Revolving Commitment Increase shall mature on the Maturity Date of such Class being increased) and (c) except as set forth above, shall be treated substantially the same as the Tranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences (other than interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent Arrangers and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Parent Borrower and the lenders thereof; provided further that if the Applicable Rate or such similar interest rate margin (which for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount that are paid to Lenders generally in the primary syndication of such Incremental Term Loans) relating to any Incremental Term Loans exceeds the Applicable Rate (which, for such purposes only, shall not have a Weighted Average Life be deemed to Maturity shorter than that of include all upfront or similar fees or original issue discount payable to Lenders generally in the Tranche B Term Loans (without giving effect to any prior Extensions thereof) (except by virtue of amortization or prepayment primary syndication of the Term Loans) relating to the Term Loans immediately prior to the time effectiveness of the applicable Incremental Amendment by more than 0.25% per annum, the Applicable Rate relating to the Term Loans shall be adjusted to be equal to the Applicable Rate or such similar interest rate margin (which for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount that are paid to Lenders generally in the primary syndication of such incurrence)Incremental Term Loans) relating to such Incremental Term Loans minus 0.25% per annum. Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no and each existing Term Lender will have the right, but not an obligation obligation, to make a portion of any Incremental Term Loan Loan, and no each existing Revolving Credit Lender will have the right, but not an obligation obligation, to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, ) or by any other lender bank or other financial institution (any such other lender bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents (including, without limitation, an accession by each Additional Lender to the Loss Sharing Agreement)Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan PartiesLenders, 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 Parent Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (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 effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Parent Borrower shall will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that (i) . No Lender shall be obligated to the extent the proceeds of Incremental Term Loans and Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes, and (ii) provide any amount of Incremental Term Loans in excess of the Initial Incremental Amount may be used (x) only to refinance Retained Existing Notes on their final maturity date or (y) if, after the Restatement Date but no more than nine months prior to the date of incurrence of such Incremental Term Loans or effectiveness of such Revolving Commitment Increase, the Parent Borrower shall have repaid any Retained Existing Notes on their final maturity date (other than with proceeds of Incremental Term Loans, Revolving Commitment Increases or Permitted Alternative Incremental Facilities Indebtedness, in each case incurred other than under the Initial Incremental Amount), to the extent of the amount so repaid, for working capital and other general corporate purposes (except where such Retained Existing Notes were refinanced with the proceeds of Indebtedness incurred pursuant to Section 7.03(b), in which case the proceeds of such Incremental Term Loans or Revolving Commitment Increases shall be used to permanently repay or prepay such Indebtedness)Increases, unless it so agrees. Upon each increase in (A) the Dollar Revolving Credit Commitments pursuant to this Section 2.14Section, (x) each Dollar Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Dollar Revolving Commitment Increase (each a “Dollar Revolving Commitment Increase Lender”)) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Dollar Revolving Credit Lender’s participations hereunder in outstanding Dollar Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Dollar Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Dollar Revolving Credit Lender (including each such Dollar Revolving Commitment Increase Lender) will equal the percentage of the aggregate Dollar Revolving Credit Commitments of all Dollar Revolving Credit Lenders represented by such Dollar Revolving Credit Lender’s Revolving Credit Commitment and (y) ifCommitment. If, on the date of such increase, there are any Dollar Revolving Credit Loans outstanding, such Dollar Revolving Credit Loans shall on or prior to the effectiveness of such Dollar Revolving Commitment Increase be prepaid from the proceeds of additional Dollar Revolving Credit Loans made hereunder (reflecting such increase in Dollar Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05 and (B) the Alternative Currency Revolving Credit Commitments pursuant to this Section 2.14, (x) each Alternative Currency Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Alternative Currency Revolving Commitment Increase (each an “Alternative Currency Revolving Commitment Increase Lender” and, together with each Dollar Revolving Commitment Increase Lender, the “Revolving Commitment Increase Lenders”), and each such Alternative Currency Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Alternative Currency Revolving Credit Lender’s participations hereunder in outstanding Alternative Currency Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Alternative Currency Letters of Credit held by each Alternative Currency Revolving Credit Lender (including each such Alternative Currency Revolving Commitment Increase Lender) will equal the percentage of the aggregate Alternative Currency Revolving Credit Commitments of all Alternative Currency Revolving Credit Lenders represented by such Alternative Currency Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Alternative Currency Revolving Credit Loans outstanding, such Alternative Currency Revolving Credit Loans shall on or prior to the effectiveness of such Alternative Currency Revolving Commitment Increase be prepaid from the proceeds of additional Alternative Currency Revolving Credit Loans made hereunder (reflecting such increase in Alternative Currency Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Alternative Currency Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
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