Incremental Credit Extensions. (a) The Borrower may, at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that: (i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion; (ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder; (iii) the Incremental Loans shall not mature earlier than the Maturity Date; (iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans; (v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders; (vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and (vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis. (b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans. (c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement. (d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date. (e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Sixth Amendment and Restatement Effective Date, by notice from the Company Borrower to the each Administrative Agent (whereupon the Administrative Agent Agents shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”), and a Lender making such loans, an “Incremental Lender”); it being understood provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; 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 and at the time that any such Incremental Term Loan is made (and after giving effect to any such Incremental Loansthereto) no Default or Event of Default shall exist and (ii) Holdings, the aggregate amount Borrower and the Restricted Subsidiaries shall be in compliance with the covenants set forth in Section 7.11, 7.12 and 7.13 for the Test Period in effect at the time of the Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long Facility Closing Date, as the Total Net First Lien Leverage Ratio determined on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet Basis. Each tranche of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Term Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, shall be in the case of this clause (z), the an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 with the consent of Indebtedness incurred the Term Administrative Agent or if such amount represents all remaining availability under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(cthe limit set forth in the next sentence)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) . The Incremental Term Loans (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security in all respects (including with respect to any intercreditor arrangements) with the other Loans and Commitments hereunder;
Term Loans, (iiiB) the Incremental Loans shall not mature earlier than the Maturity Date;
Date with respect to the Term Loans, (ivC) the Incremental Loans shall have a Weighted Average Life to Maturity no that is not shorter than the then remaining Weighted Average Life to Maturity of any Term Loans then outstanding and (D) except as set forth above, shall be treated substantially the Loans;
same as the Term Loans made on the Sixth Amendment and Restatement Effective Date (vin each case, including with respect to mandatory and voluntary prepayments), provided that (x) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences are reasonably acceptable to the Term Administrative Agent, (y) subject to clauses clause (iii) and (ivC) above, the interest rates and the amortization schedule applicable to any such the Incremental Term Loans shall be determined by the Borrower and the applicable Incremental Lenders;
lenders thereof and (viz) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject Weighted Average Yield applicable to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), Term Loans exceeds by more than 50 basis points 0.50% per annum the Weighted Average Yield applicable to any Term Loans outstanding at the time of the incurrence of such Incremental Term Loans (the amount of such excess above 50 basis points being referred to herein as over 0.50% per annum, the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, then the Applicable Margin then in effect for Rate with respect to such Term Loans shall automatically be increased by the Incremental Yield Differential; provided, that if Differential upon the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent making of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basisTerm Loans.
(b) Except as set forth in Section 2.19(a)Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans shall be treated substantially not exceed the same as the Loans, including with respect to mandatory and voluntary prepayments Incremental Amount.
(unless the applicable Incremental Lenders agree to a less than pro rata share of such prepaymentsc) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) . Incremental 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 Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 andLender”), to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the applicable Administrative Agent 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 if such consent would be required under Section 10.6(b10.07(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the 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, 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 Agents and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.14. The effectiveness of and the borrowing of Incremental Term Loans under any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition conditions set forth in clause Section 4.02 (dit 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) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (Travelport LTD)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the LendersBanks), request one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood provided that both at the time of any such request and upon the effectiveness of any Incremental Amendment No. 1 referred to below, no Potential Default or Event of Default shall exist and Amendment No. 2 each constituteconstituted an “at the time that any such Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” Loan is made (and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect thereto) no Potential Default or Event of Default shall exist. Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to any such Incremental Loansthe contrary herein, the aggregate amount of the Incremental Term Loans shall not exceed an amount equal to $100,000,000 (the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio “Incremental Availability”); provided, that on a Pro Forma Basis (but without pro forma basis after giving effect to the cash proceeds remaining on the balance sheet incurrence of such Incremental LoansTerm Loans (i) as of the most recently completed period of four consecutive fiscal quarters for which Loan Parties shall be in pro forma compliance with (x) the financial statements Total Leverage Ratio and certificates required by Section 5.1(a) or (b)Senior Leverage Ratio set forth in Sections 5.2.16 and 5.2.17 hereof assuming, as in each case, that the case may be, have been or were required to have been delivered does not exceed 4.35 maximum permitted ratio is 0.25 to 1.00 (without giving effect lower than otherwise permitted pursuant to any contemporaneous borrowing under clause (z) below), plus such Section and (y) the amount of all prior voluntary prepayments of the Loans, Interest Coverage Ratio set forth in Section 5.2.15. The Incremental Term Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I(a) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
Loans, (iiib) the Incremental Loans shall not mature earlier than the Maturity Date;
Termination Date and (ivc) shall be treated substantially the same as the Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (i) the terms and conditions applicable to Incremental Term Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity may be materially different from those of the Loans;
(v) subject Loans to clauses (iii) the extent such differences are reasonably acceptable to the Administrative Agent and (ivii) above, the interest rates and the amortization schedule applicable to any such the Incremental Term Loans shall be determined by the Borrower and the lenders thereof; provided, further, that, (a) in the event that the applicable Incremental Lenders;
(vi) no Default or Event interest margins in respect of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with Term Loans are more than 0.25% per annum greater than the applicable interest margins in respect of the Loans, then the applicable interest margins in respect of the Loans shall be increased to the extent necessary so that the interest margins in respect of the Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.25% per annum, (b) solely for purposes of the foregoing clause (a), (x) the interest rate margins applicable to any Loans or Incremental Amendment entered into in connection therewith Term Loans shall be deemed to include all original issue discount or upfront or similar fees (and after giving effect which shall be deemed to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form constitute like amounts of interest rate margins, original issue discount, upfront fees ) paid or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined payable by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject generally to the first proviso Banks providing such Loans or such Incremental Term Loans in this clause the initial primary syndication thereof (vii))), with any original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereofmaturity) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest ratey) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor Eurodollar Base Rate or ABR includes a “floor” greater than the interest rate floor applicable to the Loans1.5% or 2.5%, the differential between respectively, such interest rate floors increased amount shall be equated to interest margin; provided further that as of the interest rate margins for purposes date of determining whether an increase to the Applicable Margin shall be required, but only to incurrence of the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Incremental Term Loans, and in such case the interest rate floor (but not Weighted Average Life to Maturity of the Applicable Margin) applicable to the Incremental Term Loans shall not be increased to the extent shorter than that of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) . Incremental Term Loans may be made by any existing Lender or any Additional Lender Bank (provided that no Lender shall be obligated and each existing Bank will have the right, but not an obligation, to make a portion of any Incremental Loan) Term Loan on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date2.18) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for other financial institution being called an assignment of Loans to such Lender or “Additional LenderBank”). Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender Bank agreeing to provide such Commitment, if any, each Additional LenderBank, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other LendersBanks, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebySection. The effectiveness of (and the borrowing under) any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition conditions set forth in clause Section 4.1.1 (dit being understood that all references to “the Closing Date” or similar language in such Section 4.1.1 shall be deemed to refer to the effective date of such Incremental Amendment) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents . No Bank shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except obligated to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement provide any Incremental AmendmentTerm Loans unless it so agrees.
Appears in 1 contract
Sources: Credit Agreement (Triumph Group Inc)
Incremental Credit Extensions. (a) The Borrower may, at any time or from From time to time on or after the Closing Date, by subject to the terms and conditions set forth herein, the Borrower may, upon ten (10) Business Days’ prior written notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add one or more additional tranches of Loans term loans (the commitments thereof“Incremental Term Loans”) or one or more increases in the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental LenderFacilities”); it being understood , provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to at the establishment time of the Term B-2 Commitments as “effectiveness of each Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
Facility Amendment (i) no Default or Event of Default has occurred and is continuing or shall result therefrom, (ii) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in ARTICLE VI as of the last day of the most recently ended Fiscal Quarter after giving effect to any such Incremental Revolving Commitments (assuming for such purpose that such Incremental Revolving Commitments are fully drawn at such time) or Incremental Term Loans, as applicable, (iii) each of the aggregate amount of Incremental Loans conditions set forth in Section 3.2 shall not exceed an amount equal to have been satisfied and (iv) the sum of (x) an unlimited amount at any time so long Administrative Agent shall have received from the Borrower such legal opinions, resolutions, certificates and other documents as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (Administrative Agent may reasonably request. Notwithstanding anything to contrary herein, but without giving effect subject to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (ze) immediately below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) all Incremental Facilities shall not exceed the sum of $200,000,000. Each Incremental Facility shall be reduced by the in an integral multiple of $5,000,000 and be in an aggregate principal amount that is not less than $10,000,000 in case of Incremental Term B-1 Loans or $10,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than the Term B-2 Loans and (B) shall be available at applicable minimum amount if such amount represents all times and shall not be subject the remaining availability hereunder as set forth above of if the Administrative Agent agrees in writing to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the a lesser minimum amount. Each Incremental Loans Facility shall rank pari passu in right of payment payment, and shall have the same guarantees as, and be secured by the same Collateral securing, all of security with the other Loans and Commitments Obligations hereunder;.
(iiib) Except with respect to the Term Loan A-1, any Incremental Term Loans (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loan A and (ii) other than amortization, pricing or maturity date, shall have the same terms as the Term Loans or such other terms as are reasonably satisfactory to the Administrative Agent, provided that (A) any Incremental Loans Term Loan shall not mature have a final maturity date earlier than the Term Loan A Maturity Date;
Date and (ivB) the any Incremental Loans Term Loan shall not have a Weighted Average Life to Maturity no that is shorter than the Weighted Average Life to Maturity of the Loans;then-remaining Term Loan A.
(vc) subject Any Incremental Revolving Commitment shall be on the same terms and conditions as, and pursuant to clauses (iii) and (iv) abovethe same documentation as applicable to, the interest rates Revolving Commitments. From and after the amortization schedule applicable making of an Incremental Term Loan or the addition of any Incremental Revolving Commitments pursuant to any this Section, such Incremental Loans shall be determined by the Borrower Term Loan and the applicable such revolving loan funded pursuant to an Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which Revolving Commitment shall be deemed to constitute like amount of original issue discount)a “Loan”, but excluding any arrangement“Term Loan” and/or “Revolving Loan”, structuring or other fees payable in connection therewith that are not shared with as applicable, hereunder for all Lenders providing such Incremental Loanpurposes hereof, which shall not be included and equated to the interest rate) with respect to the existing Loansand, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including clause (b) immediately above with respect to mandatory Incremental Term Loans, shall be subject to the same terms and voluntary prepayments conditions as each other Term Loan or Revolving Loan made pursuant to this Agreement.
(unless the applicable Incremental Lenders agree to a less than pro rata share of such prepaymentsd) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans and/or Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those Revolving Commitments. Except with respect to the Loans Term Loan A-1, each Lender shall have the right for a period of ten (but excluding any terms applicable after the Maturity Date10) or (ii) relate day following receipt of such notice, to provisions of a mechanical (including with respect elect by written notice to the Collateral Borrower and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; Agent to provide the requested Incremental Facility by a principal amount equal to its Pro Rata Share of such Incremental Facility. Any Lender who does not respond within such 10 day period shall be deemed to have elected not to provide such Incremental Facility. If any Lender shall elect not to provide such Incremental Facility pursuant to this Section 2.24, the Borrower may designate any other bank or other financial institution (which may be, but need not be, one or more of the existing Lenders), which agrees to provide such Incremental Facility (any such other bank or other financial institution being called an “Additional Lender”) and in the case of any Additional Lender, agrees to become a party to this Agreement, provided that the Issuing Bank (in the case of an increase through an Incremental Revolving Commitment) and the Administrative Agent 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 Incremental Revolving Commitment if such consent would be required under Section 10.6(b10.4(b) for an assignment of Loans or Revolving Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Loans Any Additional Lender shall become Commitments a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each such Additional Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent; provided, that no Incremental Facility Amendment shall be required for the Term Loan A-1 if the Administrative Agent and the Borrower so determine. The No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders and/or any existing Lender who has elected to provide any Incremental Term Loans or increase its Revolving Commitment with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section includingSection. Upon each increase in the Revolving Commitments pursuant to this Section, subject (a) each Lender holding a Revolving Commitment immediately prior to clause such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment (each a “Incremental Revolving Lender”) in respect of such increase, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender holding a Revolving Commitment (including each such Incremental Revolving Lender) will equal its Pro Rata Share and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such increase of the Revolving Commitments be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with (a). 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. This Section 2.24(d) shall supersede any provisions in Section 2.21(a) and Section 10.2 to the contrary.
(e) If the Term Loan A-1 Commitment provided on the Closing Date is less than $50,000,000, the Borrower shall have the right for a period of 30 days following the Closing Date to obtain an Incremental Term Loan in accordance with this Section 2.192.24, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness principal amount of any such Incremental Amendment Term Loan shall be (unless waived or not required by excluded for purposes of determining the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition limitations set forth in clause (da) below and such other conditions as the parties thereto shall agree of this Section 2.24; provided, that (the effective date of any i) such Incremental AmendmentTerm Loan shall for all purposes be deemed to be the “Term Loan A-1” and shall be subject to the terms, an conditions and provisions herein related to the “Term Loan A-1” and (ii) in no event shall such Incremental Facility Term Loan, together with any portion of the Term Loan A-1 funded on the Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement, if any, exceed $50,000,000.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
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Incremental Credit Extensions. (a)
(a) The Borrower BorrowersBorrower may, at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood that Amendment No. 1 and constitutesand Amendment No. 2 each constituteconstituted constitute an “Incremental Amendment” with respect to the establishment of the Term B-2 B-1 Incremental2 Commitments as “Incremental Commitments” and the Term B-2 B-12 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 4.235 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 17285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower BorrowersBorrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower BorrowersBorrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it theyit may elect in its theirits sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower BorrowersBorrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a), or 8.1(f), 8.2(a) or 8.1(f8.2(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower BorrowersBorrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the BorrowerBorrowersBorrower, 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, 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 BorrowerBorrowersBorrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower BorrowersBorrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower BorrowersBorrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
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Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental Lender”"INCREMENTAL TERM LOANS"); it being understood PROVIDED that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; 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 and at the time that any such Incremental Term Loan is made (and after giving effect to any such Incremental Loans, thereto) no Default or Event of Default shall exist and (ii) the aggregate amount Borrower shall be in compliance with each of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio covenants set forth in Section 7.09 determined on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments last day of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the most recent Test Period. The aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance Incremental Term Loans shall not exceed $100,000,000 and the principal amount of doubt, the amount available to the Borrower pursuant to this clause (z) (A) each Incremental Term Loan shall not be reduced by the less than $25,000,000. The Incremental Term B-1 Loans or the Term B-2 Loans and (Ba) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) rank PARI PASSU or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu junior in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans, (iiib) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) Date with respect to the Incremental Term Loans and shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
Term Facility, (vc) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except except as set forth in Section 2.19(a)above, the Incremental Loans shall be treated substantially the same as (and in any event, no more favorably than) the LoansTerm Loans (in each case, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.with
Appears in 1 contract
Sources: Credit Agreement (Uici)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower 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 Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (b) one or more increases in the amount of the Revolving Commitments (each such increase, and a Lender making such loans“Revolving Commitment Increase” and, an together with any Incremental Term Loans, referred to herein as a “Incremental LenderCredit Increase”); it being understood provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist or would exist after giving effect thereto and (ii) as of the Incremental Facility Closing Date, the Borrower shall be in compliance with the provisions of Section 7.1, calculated on a pro forma basis after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal Credit Increase to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining be made on the balance sheet of such Incremental Loans) Facility Closing Date, as of the end of the most recently completed recent period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I6.1(a) or (b) or, if prior to the first delivery date for such financial statements hereunder, as of the end of the period for which the most recent financial statements of the Company are available and if the last day of any such period is prior to the first test date under Section 7.1, the levels for the first test date under Section 7.1 shall be deemed to apply for this purpose. Each Credit Increase shall be in an aggregate principal amount that is secured by not less than $15,000,000 (provided that such amount may be a lesser amount if such amount represents all remaining availability under the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, limit set forth in the case of this clause (znext sentence and there shall be no more than four such increases). Notwithstanding anything to the contrary herein, the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) Credit Increases shall not exceed $75,000,000. The Incremental Term Loans (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
applicable Facilities, (iiiB) the Incremental Loans shall not mature earlier than the Tranche B Maturity Date;
(iv) the Incremental Loans Date and shall have a Weighted Average Life weighted average life to Maturity no shorter than the Weighted Average Life maturity (pursuant to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the such amortization schedule applicable to any such Incremental Loans shall schedules as may be determined by the Borrower and the applicable Incremental Lenders;
(vilenders thereof) that is no Default or Event shorter than the then-remaining weighted average life to maturity of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Tranche B Term Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as the aggregate amount thereof may have been reduced and as the scheduled amortization thereof may have been modified as of such date) and (C) will accrue interest at rates determined by the Borrower and the lenders providing such Incremental Term Loans, which rates may be higher or lower than the rates applicable to the Tranche B Term Loans, provided that if the initial yield on such Incremental LendersTerm Loans (as determined by the Administrative Agent to be equal to the sum of (1) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors margins on such Incremental Term Loans and (subject to 2) if such Incremental Term Loans are initially made at a discount or the first proviso Lenders making the same in this clause syndication thereof receive a fee (vii))), original issue in the form of discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount)or otherwise, but excluding any arrangementunderwriting or arrangement fee paid for the account of an underwriter or arranger and also, structuring for the avoidance of doubt, excluding any financial advisory fee paid in respect of services rendered in respect of any merger, acquisition or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to similar transaction) directly or indirectly from the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing trancheParent, the OID applicable to Borrower, any Subsidiary or Affiliate of the refinanced loans shall be taken into account), by more than 50 basis points foregoing for doing so (the amount of such excess above 50 basis points discount or fee, expressed as a percentage of the Incremental Term Loans, being referred to herein as “Incremental OID,” with the amount of such Incremental OID being quantified by dividing it by an assumed four year life to maturity) exceeds (such excess, the “Incremental Yield Differential”) the sum of (x) the interest margin for Initial Tranche B Term Loans as of the Closing Date and (y) if the Initial Tranche B Term Lenders in syndication thereof received upfront or similar fees (in the form of discount or otherwise, but excluding any underwriting or arrangement fee paid for the account of an underwriter or arranger and also, for the avoidance of doubt, excluding any financial advisory fee paid in respect of services rendered in respect of any merger, acquisition or similar transaction) directly or indirectly from the Parent, the Borrower, any Subsidiary or any Affiliate of the foregoing for making the Initial Tranche B Term Loans (the amount of such fees, expressed as a percentage of the sum of the original aggregate amount of the Initial Tranche B Term Commitments, being referred to herein as “Initial OID”), then, upon with the effectiveness amount of such Incremental AmendmentInitial OID being quantified by dividing it by an assumed four year life to maturity, then the Applicable Margin then in effect for any outstanding Tranche B Term Loans shall automatically be increased by the Incremental Yield Differential; provided, that if effective upon the making of the Incremental Loans include an interest-rate floor greater than Term Loans; provided that except as provided in preceding clauses (B) or (C), the interest rate floor terms and conditions applicable to Incremental Term Loans may be materially different from those of the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only Tranche B Term Loans to the extent an increase in the interest rate floor applicable such differences are reasonably acceptable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans Administrative Agent. The Revolving Commitment Increases shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same terms as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and GuaranteesRevolving Commitments. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.23 shall set forth the requested amount and proposed terms of the relevant Credit Increases. Incremental Loans.
(c) Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (and each existing Tranche B Term Lender (provided that no Lender shall be obligated will have the right to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, Term Loan and each existing Revolving Lender will have the right to the extent not permitted in this Section 2.19, all terms and documentation with respect to provide a portion of any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateRevolving Commitment Increase) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative natureother financial institution being called an “Additional Lender”), shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent and, in the case of a Revolving Commitment Increase, the Issuing Bank 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 such consent would be required under Section 10.6(b) 10.6 for an assignment of Tranche B Term Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Loans Credit Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Parent, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) 2.23 and the use of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebyproceeds of such Credit Increase. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions set forth in the Incremental Amendment. No Lender shall be obligated to provide any Credit Increases, unless it so agrees. Upon each increase in the Revolving Commitments pursuant to this Section 2.23, the participations held by the Revolving Lenders in the L/C Exposure and Swingline Loans immediately prior to such increase will be reallocated so as to be held by the Revolving Lenders ratably in accordance with their respective Revolving Percentages after giving effect to such Revolving Commitment Increase. If, on the date of a Revolving Commitment Increase, there are any Revolving Loans outstanding, the Borrower shall prepay such Revolving Loans in accordance with this Agreement on the date of effectiveness of such Revolving Commitment Increase (but the Borrower may finance such prepayment with a concurrent borrowing of Revolving Loans from the Revolving Lenders in accordance with their Revolving Percentages after giving effect to such Revolving Commitment Increase). The Borrower will may use the proceeds of the Incremental Loans each Credit Increase for any purpose not prohibited by this AgreementAgreement unless otherwise agreed in connection with such Credit Increase.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Sources: Credit Agreement (Radiation Therapy Services Holdings, Inc.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases to the then-existing Term Loans or one or more additional tranches Classes of Term Loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default shall have occurred at the time of the incurrence of such Incremental Term Loans and be continuing or result therefrom, (orii) no Lender shall be obligated to provide any Incremental Term Loans as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in writing in its sole discretion to provide an Incremental Term Loan and executed and delivered to the Administrative Agent an Incremental Amendment as provided below in this Section 2.14, such Lender shall not be obligated to fund any Incremental Term Loans, (iii) each increase in then-existing Term Loans or additional Class of Incremental Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 and a whole multiple of $1,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence or the Administrative Agent otherwise consents) and (iv) the Borrower shall have delivered to the Administrative Agent and each Lender a certificate executed by an Authorized Officer of the Borrower, certifying, to the best of such officer’s knowledge, (x) compliance with the requirements of preceding clause (i), the provisos of the second succeeding sentence, and of Section 6 to the extent required by the next succeeding paragraph, and (y) the “Maximum Incremental Facilities Amount”, including the ratio set forth therein, if applicable, at the time of incurrence (together with calculations thereof in reasonable detail). Notwithstanding anything to the contrary herein, in connection with a Limited Condition Transaction, no Default or Event event shall the aggregate amount of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date Term Loans incurred at any time exceed the Maximum Incremental Facilities Amount as of such time. The Incremental Term Loans shall be, except as provided in immediately succeeding clause (ii) below, secured by the Security Documents, and guaranteed under the Guaranty, on an equal and ratable basis with all other Obligations secured by the Security Documents and guaranteed under the Guaranty and shall be treated substantially the same as the existing Term Loans (in each case, including with respect to any Incremental Amendment entered into in connection therewith (mandatory and after giving effect to any Incremental Loans made thereundervoluntary prepayments); and
provided, however, that (viii) with respect the interest rate applicable to a Class of Incremental Term Loans may differ from that applicable to the Initial Term Loans or any other Class of Incremental AmendmentTerm Loans, provided, however, if the all-in-yield “effective yield” applicable to a given Class of Incremental Term Loans (whether in the form which, for such purposes only, shall be deemed to take account of any then applicable interest rate marginsmargin, original issue discountinterest rate benchmark floors, recurring fees and all upfront or similar fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated amortized over the shorter of (x) the life of such loans and (y) four years) payable to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount all Lenders providing such Class of original issue discount), Incremental Term Loans but excluding exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Class of Incremental LoanTerm Loans) determined as of the initial funding date for such Class of Incremental Term Loans exceeds the “effective yield” of any Initial Term Loans or any other Class of Incremental Term Loans (unless the terms of such Class provide that such Class is not subject to this provision) (determined on the same basis as provided above, which shall not with the comparative determination to be included and equated to made in the interest ratereasonable judgment of the Administrative Agent consistent with generally accepted financial practice) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points 0.50% (the amount of such excess above 50 basis points over 0.50% being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such Initial Term Loans or such other Class of Incremental Term Loans subject to a Yield Differential shall automatically be increased by the Yield Differential (including, as provided in the following proviso, the LIBO Rate or Base Rate floor) effective upon the making of the applicable Incremental Yield DifferentialTerm Loans; providedprovided that, that in determining the interest rate margins applicable to the Incremental Term Loans and the Initial Term Loans or such other Class of Incremental Term Loans (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans or any other Class of Incremental Term Loans in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity) and (y) if the Incremental Term Loans include an interest-rate a LIBO Rate floor or Base Rate floor greater than the interest rate LIBO Rate floor or Base Rate floor applicable to the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans, the differential between (I) such interest rate floors increased amount shall be equated to the interest rate margins margin for purposes of determining whether an increase to the Applicable Margin applicable interest margin under the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans shall be required, but only required and (II) to the extent an increase in the interest rate LIBO Rate floor applicable to or Base Rate floor in the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate then in effect thereunder, the LIBO Rate floor or Base Rate floor (but not the Applicable Margininterest rate margin) applicable to the Initial Term Loans or any other then-existing Class of Incremental Term Loans shall be increased by such increased amount, (ii) a given Class of Incremental Term Loans may rank junior in right of security with other Term Loans or be unsecured, in which case such Incremental Term Loans will be extended pursuant to a separate credit agreement and the provisions of immediately preceding clause (i) shall not apply; (iii) the final stated maturity date for a given Class of Incremental Term Loans may be on or later (but not sooner) than, the Initial Maturity Date, (iv) the amortization requirements for a given Class of Incremental Term Loans may differ, (v) except as otherwise required or as permitted in clauses (i) through (iv) above, the other terms of a given Class of Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders and/or Additional Lenders providing such Incremental Term Loans and shall, at all times prior to the extent Latest Maturity Date then in effect at the time of such differential between interest rate floorsincurrence, be substantially consistent with the terms of the Loans; provided that such terms may differ if reasonably satisfactory to the Administrative Agent; provided, further, that any Incremental Facility such terms that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), are not substantially consistent with the Incremental then- existing Loans shall be no more favorable (taken as a whole) to the relevant Lenders under such Incremental Term Loans than those applicable to the then-existing Loans (taken as a whole) and (vi) the proceeds of Incremental Term Loans may be utilized by Holdings, the Borrower or any of their respective Subsidiaries as may be agreed by the Borrower and the Lenders providing the Incremental Term Loans, to the extent not otherwise prohibited by this Agreement. Notwithstanding the foregoing, Incremental Term Loans may have identical terms to any of the Term Loans and be treated substantially as the same Class as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share any of such prepayments) and GuaranteesTerm Loans. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) . Incremental Term Loans may be made by any existing Lender (or any Additional existing Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateAffiliate) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agentother financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented to such Additional Lender (such consent not to be unreasonably withheld, conditioned withheld or delayed) and such Additional Lender shall not be an Affiliated Lender (other than Affiliated Sponsor Lenders in accordance with the requirements of, and subject to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(bthe limitations contained in, Sections 2.15(a)(vii) for an assignment of Loans to such Lender or Additional Lenderand (d)). Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent, and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 5. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents (including, without limitation, any Mortgage modifications and related date-down endorsements to the Mortgage Policies) as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.14. The effectiveness occurrence of the effective date of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on such date of each of the condition conditions set forth in clause Section 6 (dit being understood that all references to “the Borrowing Date” or similar language in such Section 6 shall be deemed to refer to the effective date of such Incremental Amendment) below and such other conditions as the parties thereto shall agree (the effective date of agree. No Lender shall be obligated to provide any such Incremental AmendmentTerm Loans, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreementunless it so agrees.
(db) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date[Reserved].
(ec) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 12.06 or 10.1 12.12 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower 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 Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (b) one or more increases in the amount of the Revolving Commitments (each such increase, and a Lender making such loans“Revolving Commitment Increase” and, an together with any Incremental Term Loans, referred to herein as a “Incremental LenderCredit Increase”); it being understood provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist or would exist after giving effect thereto and (ii) as of the Incremental Facility Closing Date, the Borrower shall be in compliance with the provisions of Section 7.1, calculated on a pro forma basis after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal Credit Increase to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining be made on the balance sheet of such Incremental Loans) Facility Closing Date, as of the end of the most recently completed recent period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I6.1(a) or (b) or, if prior to the first delivery date for such financial statements hereunder, as of the end of the period for which the most recent financial statements of the Company are available and if the last day of any such period is prior to the first test date under Section 7.1, the levels for the first test date under Section 7.1 shall be deemed to apply for this purpose. Each Credit Increase shall be in an aggregate principal amount that is secured by not less than $15,000,000 (provided that such amount may be a lesser amount if such amount represents all remaining availability under the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, limit set forth in the case of this clause (znext sentence and there shall be no more than four such increases). Notwithstanding anything to the contrary herein, the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) Credit Increases shall not exceed $75,000,000. The Incremental Term Loans (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
applicable Facilities, (iiiB) the Incremental Loans shall not mature earlier than the Tranche B Maturity Date;
(iv) the Incremental Loans Date and shall have a Weighted Average Life weighted average life to Maturity no shorter than the Weighted Average Life maturity (pursuant to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the such amortization schedule applicable to any such Incremental Loans shall schedules as may be determined by the Borrower and the applicable Incremental Lenders;
(vilenders thereof) that is no Default or Event shorter than the then-remaining weighted average life to maturity of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Tranche B Term Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as the aggregate amount thereof may have been reduced and as the scheduled amortization thereof may have been modified as of such date) and (C) will accrue interest at rates determined by the Borrower and the lenders providing such Incremental Term Loans, which rates may be higher or lower than the rates applicable to the Tranche B Term Loans, provided that if the initial yield on such Incremental LendersTerm Loans (as determined by the Administrative Agent to be equal to the sum of (1) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors margins on such Incremental Term Loans and (subject to 2) if such Incremental Term Loans are initially made at a discount or the first proviso Lenders making the same in this clause syndication thereof receive a fee (vii))), original issue in the form of discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount)or otherwise, but excluding any arrangementunderwriting or arrangement fee paid for the account of an underwriter or arranger and also, structuring for the avoidance of doubt, excluding any financial advisory fee paid in respect of services rendered in respect of any merger, acquisition or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to similar transaction) directly or indirectly from the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing trancheParent, the OID applicable to Borrower, any Subsidiary or Affiliate of the refinanced loans shall be taken into account), by more than 50 basis points foregoing for doing so (the amount of such excess above 50 basis points discount or fee, expressed as a percentage of the Incremental Term Loans, being referred to herein as “Incremental OID,” with the amount of such Incremental OID being quantified by dividing it by an assumed four year life to maturity) exceeds (such excess, the “Incremental Yield Differential”) the sum of (x) the interest margin for Initial Tranche B Term Loans as of the Amendment and Restatement Effective Date and (y) if the Initial Tranche B Term Lenders in syndication thereof received upfront or similar fees (in the form of discount or otherwise, but excluding any underwriting or arrangement fee paid for the account of an underwriter or arranger and also, for the avoidance of doubt, excluding any financial advisory fee paid in respect of services rendered in respect of any merger, acquisition or similar transaction) directly or indirectly from the Parent, the Borrower, any Subsidiary or any Affiliate of the foregoing for making the Initial Tranche B Term Loans (the amount of such fees, expressed as a percentage of the sum of the original aggregate amount of the Initial Tranche B Term Commitments, being referred to herein as “Initial OID”), then, upon with the effectiveness amount of such Incremental AmendmentInitial OID being quantified by dividing it by an assumed four year life to maturity, then the Applicable Margin then in effect for any outstanding Tranche B Term Loans shall automatically be increased by the Incremental Yield Differential; provided, that if effective upon the making of the Incremental Loans include an interest-rate floor greater than Term Loans; provided that except as provided in preceding clauses (B) or (C), the interest rate floor terms and conditions applicable to Incremental Term Loans may be materially different from those of the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only Tranche B Term Loans to the extent an increase in the interest rate floor applicable such differences are reasonably acceptable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans Administrative Agent. The Revolving Commitment Increases shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same terms as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and GuaranteesRevolving Commitments. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.23 shall set forth the requested amount and proposed terms of the relevant Credit Increases. Incremental Loans.
(c) Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (and each existing Tranche B Term Lender (provided that no Lender shall be obligated will have the right to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, Term Loan and each existing Revolving Lender will have the right to the extent not permitted in this Section 2.19, all terms and documentation with respect to provide a portion of any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateRevolving Commitment Increase) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative natureother financial institution being called an “Additional Lender”), shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent and, in the case of a Revolving Commitment Increase, the Issuing Bank 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 such consent would be required under Section 10.6(b) 10.6 for an assignment of Tranche B Term Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Loans Credit Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Parent, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) 2.23 and the use of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebyproceeds of such Credit Increase. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions set forth in the Incremental Amendment. No Lender shall be obligated to provide any Credit Increases, unless it so agrees. Upon each increase in the Revolving Commitments pursuant to this Section 2.23, the participations held by the Revolving Lenders in the L/C Exposure and Swingline Loans immediately prior to such increase will be reallocated so as to be held by the Revolving Lenders ratably in accordance with their respective Revolving Percentages after giving effect to such Revolving Commitment Increase. If, on the date of a Revolving Commitment Increase, there are any Revolving Loans outstanding, the Borrower shall prepay such Revolving Loans in accordance with this Agreement on the date of effectiveness of such Revolving Commitment Increase (but the Borrower may finance such prepayment with a concurrent borrowing of Revolving Loans from the Revolving Lenders in accordance with their Revolving Percentages after giving effect to such Revolving Commitment Increase). The Borrower will may use the proceeds of the Incremental Loans each Credit Increase for any purpose not prohibited by this Agreement.
(d) Agreement unless otherwise agreed in connection with such Credit Increase. Each of the representations and warranties made by any Loan Party in or pursuant Credit Increase shall be designated as an increase to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified Extended Revolving Commitments or the Non-Extended Revolving Commitments, as determined by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental AmendmentLenders providing such Credit Increase.
Appears in 1 contract
Sources: Amendment Agreement (Radiation Therapy Services Holdings, Inc.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower 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 Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”), and (b) one or more increases in the amount of the Revolving Credit Commitments (each such increase, a Lender making “Revolving Commitment Increase”) or (c) one or more increases in the amount of the Synthetic L/C Commitments (each such loansincrease, an a “Incremental LenderSynthetic L/C Commitment Increase”); it being understood , provided that both at the time of any such request and upon the effectiveness of any Incremental Amendment No. 1 referred to below, no Default or Event of Default shall exist and Amendment No. 2 each constituteconstituted an “at the time that any such Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” Loan is made (and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect thereto) no Default or Event of Default shall exist. Each tranche 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), each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence), and each Synthetic L/C Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to any such Incremental Loansthe contrary herein, (x) the aggregate amount of all Incremental Loans Term Loans, all Revolving Commitment Increases and all Synthetic L/C Commitment Increases subsequent to the Closing Date shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements $375,000,000 and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the aggregate amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available Revolving Commitment Increases subsequent to the Borrower pursuant to this clause (z) (A) Closing Date shall not be reduced by the exceed $75,000,000. The Incremental Term B-1 Loans or the Term B-2 Loans and (Ba) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans, the Synthetic L/C Loans and Commitments hereunder;
the Term Loans, (iiib) the Incremental Loans shall not mature earlier than the Maturity Date;
Date with respect to the Term Loans, (ivc) the Incremental Loans shall not have a Weighted Average Life to Maturity no shorter that is less than the remaining Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) Term Loans and (ivd) aboveshall be treated substantially the same as the 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 are reasonably acceptable to the Administrative Agent and (ii) the interest rates and the amortization schedule applicable to any such the Incremental Term Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (orlenders thereof, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as limitation set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments clause (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepaymentsc) and Guaranteesabove. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) , Synthetic L/C Commitment Increases or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases and Synthetic L/C Commitment Increases may be provided, by any existing Lender or any Additional (and each existing Term Lender (provided that no Lender shall be obligated will have the right, but not an obligation, to make a portion of any Incremental Term Loan) , each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Revolving Commitment Increase and each existing Synthetic L/C Lender will have the right, but not an obligation, to provide a portion of any Synthetic L/C Commitment Increase, in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all 2.14 and otherwise on terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory acceptable to the Administrative Agent; ) or by any other bank or other financial institution approved by the Borrower (any such other 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, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases or Synthetic L/C Commitment Increases if such consent would be required under Section 10.6(b10.07(b) for an assignment of Loans or Revolving Credit Commitments or Synthetic L/C Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Loans Term Loans, Synthetic L/C Commitment Increases and Revolving Commitment Increases shall become Commitments (or in the case of (x) a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment or (y) a Synthetic L/C Commitment Increase to be provided by an existing Synthetic L/C Lender, an increase in such Lender’s applicable Synthetic L/C Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the 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 or a Synthetic L/C Commitment Increase) and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebySection. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition conditions set forth in clause Section 4.02 (dit 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 borrowing of the applicable Incremental Term Loan) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases and Letters of Credit issued pursuant to the Revolving Commitment Increases and Synthetic L/C Commitment Increases for any purpose not prohibited by this Agreement.
. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases or Synthetic L/C Commitment Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section, (da) Each each 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 representations Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and warranties made by any Loan Party each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in or pursuant outstanding Revolving Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as percentage of the Incremental Facility Closing Date as if made on aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and as of (ii) participations he reunder in Swing Line Loans held by each Revolving Credit Lender (including each such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.Revolving Commitment Increase
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Syndication Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (x) one or more additional tranches or additions to an existing tranche of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Lender making such loans, ) in an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect aggregate amount not to exceed $820,000,000 or (y) one or more increases in the establishment amount of the Term B-2 Revolving Credit Commitments on the same terms as the Revolving Credit Facility (a “Incremental Commitments” and the Term B-2 Loans as “Incremental LoansRevolving Commitment Increase”; ) in an aggregate amount not to exceed $25,000,000, provided that:
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 and at the time that any such Incremental Term Loan is made (and after giving effect to thereto) no Default or Event of Default shall exist, (ii) both at the time of any such request and upon the effectiveness of any Incremental LoansAmendment referred to below, all of the aggregate amount representations and warranties of Incremental Loans each Loan Party set forth in Article V and in each other Loan Document shall be true and correct in all material respects as of such time (except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date), and (iii) the Borrower shall be in compliance with the covenants set forth in Section 7.11 and the Total Leverage Ratio shall not exceed an amount equal to 3.00:1.00 in the sum case of (x) an unlimited amount at any time so long as Incremental Amendment entered into after the Total Net First Lien Leverage Ratio Amendment Effective Date, in each case determined on a Pro Forma Basis (but without giving effect to as of the cash proceeds remaining on the balance sheet of such Incremental Loans) as date of the most recently completed period 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 cited in such Section shall be satisfied as of the last four consecutive quarters ended), in each case, as if such Incremental Term Loans or Revolving Loans available pursuant to such Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarters quarter of the Borrower for which the financial statements and certificates required by Section 5.1(a) or testing compliance therewith.
(b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Term Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available are added to the Borrower pursuant to this clause (z) (A) existing tranche of Term Loans shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject have identical terms to the ratio test described in foregoing clause existing Term Loans. All other Incremental Term Loans (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (yi) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans, (iiiii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to the Term Loans, (iii) shall not have interest rate margins that are greater than the highest interest rate margins that may, under any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) circumstances, be payable with respect to any Incremental Amendment, if Term Loans plus 25 basis points (and the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject margins applicable to the first proviso in Term Loans shall be increased to the extent necessary to achieve the foregoing); provided that solely for purposes of this clause (vii)iii), with such increased amount being equated the interest rate margins applicable to interest margin for purposes of determining any increase Term Loans or Incremental Term Loans shall be deemed to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined include all upfront or similar fees or original issue discount payable by the Borrower and the applicable generally to Lenders providing such Term Loans or such Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest Term Loans based on an assumed four-year life to maturity orand the effect of any LIBO Rate or Base Rate floors, if shorterin each case as determined by the Administrative Agent), the remaining (iv) shall have an average life to maturity thereofnot shorter than the remaining Weighted Average Life to Maturity of then-existing Term Loans and (v) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected except as a refinancing trancheprovided herein, the OID terms and conditions applicable to Incremental Term Loans may be materially different from those of the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Term Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable such differences are reasonably satisfactory to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor Administrative Agent.
(but not the Applicable Marginc) applicable to the Each tranche of Incremental Term Loans shall be increased to the extent of such differential between interest rate floors; provided, further, in an aggregate principal amount that any Incremental Facility that constitutes fixed-rate Indebtedness is not less than $25,000,000 and shall be swapped to a floating rate on a customary matched-maturity basisin an increment of $1,000,000 and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that in each case such amount may be less if such amount represents all remaining availability under the limit set forth in the first sentence of Section 2.16(a)).
(bd) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.16 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (but no existing Lender (provided that no Lender shall be obligated will have an obligation to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to Term Loan or any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding portion of any terms applicable after the Maturity DateRevolving Commitment Increase) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative natureother financial institution being called an “Additional Lender”), shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent 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 such consent would be required under Section 10.6(b10.07(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, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.16. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition conditions set forth in clause Section 4.02 (dit 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) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents . No Lender shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the obligated to provide any Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateTerm Loans or Revolving Commitment Increases unless it so agrees.
(e) Notwithstanding anything Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.16, (a) each 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 Revolving Commitment Increase (each a “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 Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the contrary hereineffectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the 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.
(f) This Section 2.19 2.16 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (Trinseo S.A.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Syndication Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (x) one or more additional tranches or additions to an existing tranche of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Lender making such loans, ) in an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect aggregate amount not to exceed $200,000,000 or (y) one or more increases in the establishment amount of the Term B-2 Revolving Credit Commitments on the same terms as the Revolving Credit Facility (a “Incremental Commitments” and the Term B-2 Loans as “Incremental LoansRevolving Commitment Increase”; ) in an aggregate amount not to exceed $25,000,000, provided that:
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 and at the time that any such Incremental Term Loan is made (and after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vithereto) no Default or Event of Default (orshall exist, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to both at the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the 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 time of any other Lenders, effect such amendments to this Agreement request and upon the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject referred to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmentbelow, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each all of the representations and warranties made by any of each Loan Party set forth in or pursuant to the Article V and in each other Loan Documents Document shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, time (except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties they shall have been be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date), and (iii) the Borrower shall be in compliance with the covenants set forth in Section 7.11 and the Total Leverage Ratio shall not exceed 2.25:1.00, in each case 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 cited in such Section shall be satisfied as of the last four quarters ended), in each case, as if such Incremental Term Loans or Revolving Loans available pursuant to such Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith.
(eb) Notwithstanding anything Incremental Term Loans that are added to the contrary herein, this Section 2.19 existing tranche of Term Loans shall supersede any provisions in Sections 2.12 or 10.1 have identical terms to the contrary existing Term Loans. All other Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Borrower Term Loans, (ii) shall not mature earlier than the Maturity Date with respect to the Term Loans, (iii) shall not have interest rate margins that are greater than the highest interest rate margins that may, under any circumstances, be payable with respect to Term Loans plus 25 basis points (and the interest rate margins applicable to the Term Loans shall be increased to the extent necessary to achieve the foregoing); provided that solely for purposes of this clause (iii), 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 Lenders providing such Term Loans or such Incremental Term Loans based on an assumed four-year life to maturity and the effect of any LIBO Rate or Base Rate floors, in each case as determined by the Administrative Agent may amend Section 2.12 Agent), (iv) shall have an average life to implement any Incremental Amendment.maturity not shorter than the remaining Weighted Average Life to Maturity of then-existing Term Loans and
Appears in 1 contract
Sources: Credit Agreement (Styron Canada ULC)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (ii) one or more increases in the amount of the Revolving Credit Commitments (each such increase, and a Lender making such loans“Revolving Commitment Increase” and, an together with any Incremental Term Loans, a “Incremental LenderCredit Increase”); it being understood provided, that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to both at the time of any such request and upon the effectiveness of any Incremental LoansAmendment referred to below, no Default or Event of Default shall exist and (ii) the Borrower shall be in Pro Forma Compliance with each of the covenants set forth in Sections 6.11 and 6.12. Each Credit Increase shall be in an aggregate principal amount that is not less than $20,000,000 (or such lower amount that either (a) represents all remaining availability under the limit set forth in the next sentence or (b) is acceptable to the Administrative Agent). Notwithstanding anything to the contrary herein, the aggregate amount of Incremental Loans the Credit Increases shall not exceed an amount equal to the sum of $100,000,000. The Incremental Term Loans (xa) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans, (iiib) the Incremental Loans shall not mature earlier than the Term Loan Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) Date and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as require scheduled payments of principal at a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (rate exceeding quarterly payments in the amount of such excess above 50 basis points being referred to herein as 0.25% of the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, original principal amount thereof and in such case the interest rate floor (but not the Applicable Marginc) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except except as set forth in Section 2.19(a)above, the Incremental Loans shall be treated substantially the same as the Loans, including Term Loans with respect to covenants, events of default, voting and mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Credit Increases. Incremental Loans.
(c) Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (and each existing Term Lender (provided that no Lender shall be obligated will have the right to make a portion of any Incremental Loan) Term Loan and each existing Revolving Credit Lender will have the right to provide a portion of any Revolving Commitment Increase, in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all 2.24 and otherwise on terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory acceptable to the Administrative Agent; provided ) or 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 and the Borrower, and, in the case of any Revolving Credit Increase, the Issuing Bank and the Swingline Lender shall have consented (such consent in each case, not to be unreasonably withheld, conditioned withheld or delayed) 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 10.6(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 Loans 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, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebySection. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.01 (it being understood that all references to “the date of such Credit Event” or similar language in such Section 4.01 shall be deemed to refer to the effective date of such Incremental Amendment). The Borrower will may use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Credit Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each 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 Revolving Commitment Increase (each a “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 Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.16.
(dc) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.24 shall supersede any provisions in Sections 2.12 Section 2.18 or 10.1 9.08 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: First Lien Credit Agreement (Hawkeye Holdings, Inc.)
Incremental Credit Extensions. (a) The Borrower a)Parent may, at any time or from time to time after the Closing Date, by notice from the Company Borrower 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 Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b) one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), as (i) no Event of Default shall exist; provided that, with respect to any Incremental Term Loans the case may beproceeds 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 receipt thereof, have been the absence of an Event of Default (other than a Specified Event of Default with respect to any Borrower) shall not constitute a condition to the issuance or were required to incurrence of such Incremental Term 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 does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(cSection 6.01(a) or Section 6.1(b)(vi)(II)(c)); provided thatSection 6.01(b) (which, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and calculated after giving effect to any Incremental Loans made thereunder); and
(vii) with respect acquisition consummated concurrently therewith or to any Incremental Amendment, if be consummated using the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness proceeds of such Incremental Amendment, the Applicable Margin then Facility and calculated assuming any Revolving Commitment Increase is fully drawn). Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in effect for Loans shall automatically be increased by the Incremental Yield Differential; an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as limit set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”next sentence). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary aggregate amount of the Incremental Term Loans and the Borrower and Revolving Commitment Increases (other than, for the Administrative Agent may amend Section 2.12 avoidance of doubt, those established in respect of Extended Term Loans or Extension Revolving Credit Commitments pursuant to implement any Section 2.16) shall not exceed the Maximum Incremental AmendmentFacilities Amount.
Appears in 1 contract
Sources: Credit Agreement (Uniti Group Inc.)
Incremental Credit Extensions. (a) The Borrower N▇▇▇▇▇▇ may (and TNC or NHF may, in the case of clause (b)) at any time or from time to time after the Closing Pushdown Date, by notice from the Company Borrower 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 Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (b) one or more increases in the amount of the Revolving Credit Commitments of any Facility or the addition of a new Revolving Credit Facility to be provided to the Canadian Borrower (each such increase or new Revolving Credit Facility, and a Lender making such loans, an “Incremental LenderRevolving Commitment Increase”); it being understood , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment No. 1 referred to below, no Default or Event of Default shall 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 (provided that, any such request or Incremental Amendment No. 2 each constituteconstituted an “Incremental Amendment” made in connection with a Permitted Acquisition or other Investment permitted under Section 7.02 shall require only that no Event of Default under Section 8.01(a), (f) or (g) shall exist at such time) and (ii) unless otherwise waived by the Required Class Lenders with respect to the establishment Tranche A Revolving Credit Facility and Class A Term Loans, N▇▇▇▇▇▇ shall be in compliance with the covenant set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term B-2 Commitments as “Incremental Commitments” Loan or Revolving Commitment Increase and the Term B-2 Loans last day of the most recently ended Test Period, in each case, as “Incremental Loans”; provided that:
(i) after giving effect to any if such Incremental LoansTerm Loans or Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarter of N▇▇▇▇▇▇ for testing compliance therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase 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). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Term Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus Revolving Commitment Increases (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided thatother than, for the avoidance of doubt, the amount available to the Borrower those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to this clause (z) (ASection 2.16) shall not be reduced by exceed at the time of issuance or incurrence, when taken together with the aggregate principal amount of Incremental Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent Revolving Commitment Increases incurred pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.this
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, Borrowers may at any time or from time to time after the Closing Amendment No. 46 Effective Date, by notice from the Company Parent Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches increases in the amount of Loans the Revolving Credit Commitments (the commitments thereofeach such increase, the a “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental LenderRevolving Credit Commitment Increase”); it being understood provided that both at the time of any such request and upon the effectiveness of any Incremental Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect referred to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
below (i) after giving effect all representations and warranties in Article V shall be true and correct in all material respects (except where such representations and warranties expressly relate to any an earlier date, in which case such Incremental Loans, the aggregate amount representations and warranties shall have been true and correct in all material respects as of Incremental Loans shall not exceed an amount equal such earlier date and except to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on extent that a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of particular representation or warranty is already qualified by materiality, in which case such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements representation or warranty shall be true and certificates required by Section 5.1(a) or (bcorrect), as the case may be, have been (ii) no Default or were required to have been delivered does not exceed 4.35 to 1.00 Event of Default shall exist or would result therefrom and (without giving effect to any contemporaneous borrowing under clause (ziii) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred all Revolving Credit Commitment Increases shall not exceed $50,000,0000.
(b) Each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is a whole multiple of $500,000 which is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in Section 6.1(b)(vi)(I)(c2.08(a)(iii) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available above).[Reserved].
(c) The Revolving Credit Loans made pursuant to the Borrower pursuant to this clause Revolving Credit Commitment Increases (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (Ba) shall be available at all times made under and shall not be subject documented in this Agreement or pursuant to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans an amendment hereto and shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as or less favorably than the Loans, Revolving Credit Loans (including with respect to mandatory and voluntary prepayments and voting rights).
(unless the applicable Incremental Lenders agree to a less than pro rata share of such prepaymentsd) and Guarantees. Each notice from the Company Borrower to the Administrative Agent Borrowers pursuant to this Section 2.19(a) 2.08 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans Revolving Credit Commitment Increases. Revolving Credit Commitment Increases may be made provided by any existing Lender or by any other bank or other financial institution selected by the Borrowers (any such bank or other financial institution being called an “Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative AgentLender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making or Additional Lender’s providing any such Incremental Loans Revolving Credit Commitment Increases if such consent would be required under Section 10.6(b) 11.06 for an assignment of Loans Revolving Credit Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Incremental Loans Revolving Credit Commitment Increases shall become Revolving Credit Commitments (or in the case of a Revolving Credit Commitment Increase to be provided by an existing 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, executed by Holdings, the BorrowerBorrowers, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerBorrowers, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.08. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof of each of the condition conditions set forth in clause (d) below Section 4.02 and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower Borrowers will use the proceeds of the Incremental Loans Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement.
(d) Each . No Lender shall be obligated to provide any Revolving Credit Commitment Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.08, each 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 representations Revolving Credit Commitment Increase (each, a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and warranties made each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such L▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such L▇▇▇▇▇’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Loan Party Revolving Credit Loans outstanding, the Lenders (including the Additional Lenders) shall make such payments as directed by the Administrative Agent in or pursuant to order that the Loan Documents Revolving Credit Loans are held by the Lenders (including Additional Lenders) ratably in accordance with the increased Revolving Credit Commitments (and interest and other payments shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateadjusted accordingly).
(e) Notwithstanding anything 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 contrary herein, transactions effected pursuant to this Section 2.19 2.08.
(f) This Section 2.08 shall supersede any provisions in Sections 2.12 Section 2.14, 2.15 or 10.1 11.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (Leslie's, Inc.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time on one or more occasions after the Closing Effective Date, by written notice from the Company Borrower delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy request to each of the Lenders), request add one or more additional tranches Classes of term loans or additional term loans of the same Class as any existing Class of term loans (an “Incremental Term Facility”) and/or increase the principal amount of the Term Loans by requesting new term loan commitments to be added to such Loans (the commitments thereofan “Incremental Term Increase”, and together with any Incremental Term Facility, the “Incremental Commitments”, the loans thereunder, Term Loans” or the “Incremental Loans”, and a Lender making such loans, an “Incremental LenderFacilities”); it being understood provided that, at the time that Amendment Noany such Incremental Term Loan is made or effected, no Event of Default (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, no Event of Default pursuant to Sections 7.01(a), (b), (h) or (i)) shall have occurred and be continuing; provided, further, that Incremental Term Facilities may be borrowed by any one or more Loan Parties. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect Notwithstanding anything to the establishment contrary herein, the aggregate outstanding principal amount of the Term B-2 Commitments as “Incremental Commitments” Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of $2,000,000 and integral multiples of $500,000 in excess thereof if such Incremental Facilities are denominated in dollars (unless the Lead Borrower and the Term B-2 Loans as “Incremental Loans”Administrative Agent otherwise agree); provided that:that such amount may be less than $2,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.
(i) after giving effect to any such The Incremental Term Loans (a) shall rank equal in right of payment with the Term Loans, shall be secured only by the aggregate amount of Incremental Loans Collateral securing the Secured Obligations, shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is be secured by the Collateral on a pari passu basis with the Obligations prior to such timeTerm Facility, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under guaranteed by any clause (x)Person which is not a Loan Party, (yb) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Term Maturity Date;
Date with respect to the Initial Term Loans (ivexcept in the case of bridge loans the terms of which provide for an automatic extension of the maturity date thereof, subject to customary conditions, to a date that is not earlier than the Term Maturity Date with respect to the Initial Term Loans), (c) the Incremental Loans shall not have a shorter Weighted Average Life to Maturity no shorter (except in the case of bridge loans the terms of which provide for an automatic extension of the maturity date thereof, subject to customary conditions, to a date that is not earlier than the Weighted Average Life Term Maturity Date with respect to Maturity of the Initial Term Loans;
) than the remaining Initial Term Loans, (vd) shall have a maturity date (subject to clauses clause (iii) b)), an amortization schedule (subject to clause (c)), and (iv) above, the 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 amortization schedule applicable to any such Incremental Term Loans shall be as determined by the Lead Borrower and the applicable Additional Term Lenders thereunder; provided that in the event that the Effective Yield for any Incremental Lenders;
Term Loans incurred in reliance on clause (viIII) no Default or Event of Default the definition of “Incremental Cap” prior to the 12-month anniversary of the Effective Date that are secured by the Collateral on a pari passu basis with the Secured Obligations (orother than (1) any Incremental Term Loans with a maturity date more than one year after the Term Maturity Date with respect to the Initial Term Loans, (2) any Incremental Term Loans incurred in connection with a Limited Condition Transaction, no Default Permitted Acquisition or Event of Default under Section 8.1(aother permitted Investment or (3) any Incremental Term Loans originally incurred in reliance on clauses (I) or 8.1(f)(II) shall exist on of the definition of “Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Cap”) is greater than the Effective Yield for the Initial Term Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as MFN Cushion, then the “Incremental Effective Yield Differential”), then, upon for the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans shall be increased to the extent of necessary so that the Effective Yield for such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped Initial Term Loans is equal to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Effective Yield for the Incremental Term Loans minus the MFN Cushion (provided that the “LIBOR floor” applicable to the Initial Term Loans shall be treated substantially increased to an amount not to exceed the same “LIBOR floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term Loans then outstanding) (any required adjustment to the Effective Yield described in this clause (d) shall be referred to herein as the Loansan “MFN Adjustment”), including (e) other than with respect to Credit Agreement Refinancing Indebtedness shall not participate on a greater than pro rata basis than the Initial Term Loans with respect to any mandatory prepayment (other than any scheduled amortization payment), provided that the Lead Borrower and voluntary prepayments (unless the applicable lenders providing the relevant Incremental Lenders agree Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment on a less than pro rata share basis and (f) may otherwise have terms and conditions different from those of the Term Loans (including currency denomination); provided that except with respect to matters contemplated by clauses (b), (c), (d) and (e) above, the covenants, events of default and guarantees of any such Incremental Term Loans shall not be materially more restrictive to the Borrower and the Subsidiaries, when taken as a whole, than the covenants, events of default and guarantees of the Initial Term Loans, unless (1) the existing Initial Term Loans also receive the benefit of such prepaymentsmore restrictive terms (it being understood that no consent shall be required from the Administrative Agent or any Lender to add such more restrictive terms for the benefit the existing Initial Term Loans), (2) any such provisions apply after the Term Maturity Date with respect to the Initial Term Loans at the time of incurrence of such Incremental Facility, (3) such terms reflect market terms and Guarantees. conditions (taken as a whole) at the time of establishment of such Incremental Term Facility, as determined in good faith by the Borrower or (4) such terms shall be reasonably satisfactory to the Administrative Agent and the Lead Borrower; provided further that subject to Section 1.06, upon the incurrence of any Incremental Term Loans, (x) the representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all material respect and (y) no Event of Default shall have occurred and be continuing.
(c) Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental LoansFacility.
(cd) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of any Incremental Loans Facility shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, any Loan Party that is a Borrower thereof, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility may be provided, subject to the prior written consent of the Lead Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall, unless it agrees, be obligated to provide any Incremental Facilities) or by any Additional Lender; provided that the Administrative Agent shall have consent rights (not to be unreasonably withheld, conditioned or delayed) with respect to such Additional Lender, if such consent would be required pursuant to Section 9.04 for an assignment of Loans or Commitments, as applicable, to such Additional Lender. Incremental Term Loans shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.20. The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan thereunder) pursuant to such Incremental Facility Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)and as required by this Section 2.20. The Borrower (or other applicable Loan Party) will use the proceeds of the Incremental Loans Facilities for working capital and other general corporate purposes of the Borrower and its Subsidiaries, including capital expenditures, Permitted Acquisitions and other Investments, Restricted Payments and the refinancing of Indebtedness, and any purpose other use not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateDocuments.
(e) Notwithstanding anything to the contrary hereincontrary, this Section 2.19 2.20 shall supersede any provisions in Sections 2.12 Section 2.18 or 10.1 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: First Lien Credit Agreement (Franchise Group, Inc.)
Incremental Credit Extensions. (a) The Parent Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (ii) one or more increases in the amount of the Revolving Credit Commitments (each such increase, and a Lender making such loans“Revolving Commitment Increase” and, an together with any Incremental Term Loans, a “Incremental LenderCredit Increase”); it being understood provided that both at the time of any such request and upon the effectiveness of any Incremental Amendment Noreferred to below, no Event of Default shall exist. 1 and Amendment No. 2 each constituteconstituted Each Credit Increase shall be in an “Incremental Amendment” with respect aggregate principal amount that is not less than $25,000,000 (or such lower amount that either (A) represents all remaining availability under the limit set forth in the next sentence or (B) is acceptable to the establishment of Administrative Agent). Notwithstanding anything to the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
contrary herein, (i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans the Credit Increases shall not exceed an amount equal to the sum lesser of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements $300,000,000 and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the maximum amount at the time of all prior voluntary prepayments such proposed Credit Increase that could be incurred such that after giving pro forma effect to such Credit Increase, the Total Net Leverage Ratio does not exceed 9.50:1.00 as of the Loans, Incremental Loans last date for which Section 5.04 Financials have been delivered to the Administrative Agent and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I(ii) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z)any proposed Revolving Commitment Increase, after giving pro forma effect to such Revolving Credit Increase, the aggregate principal amount total outstanding Revolving Credit Commitments shall not exceed 1.00x of Indebtedness incurred under the Parent Borrower’s EBITDA as of the last date for which Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available 5.04 Financials have been delivered to the Borrower pursuant to this clause Administrative Agent. Each Incremental Term Loan (z1) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans (subject to Section 2.17) and Commitments hereunder;
the then-existing Term Loans, (iii2) the Incremental Loans shall not mature earlier than the Term Loan Maturity Date;
, (iv3) the Incremental Loans shall have a Weighted Average Life to Maturity no not shorter than the remaining Weighted Average Life to Maturity of the Loans;
then-existing Term Loans (v) subject without giving effect to clauses (iiiannual amortization on any Incremental Term Loan Facility not in excess of 1% of the principal amount thereof) and (iv4) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether treated in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to same manner as the first proviso in this clause (vii)), with such increased amount being equated to interest margin Term Loans for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereofSection 2.13(e) and upfront fees (which shall be deemed to constitute like amount of original issue discountSection 2.17(b), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Parent Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.24 shall set forth the requested amount and proposed terms of the relevant Credit Increases. Incremental Loans.
(c) Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, 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 Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative AgentLender”); 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 withheld or delayed) 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 10.6(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 Parent 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 Loans 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, executed by the each 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, 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 including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.24. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.01 (it being understood that all references to “the date of such Credit Event” or similar language in such Section 4.01 shall be deemed to refer to the effective date of such Incremental Amendment). The Parent Borrower will may use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Credit Increases unless it so agrees in its sole discretion. Upon each increase in the Revolving Credit Commitments pursuant to this Section, (a) each 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 Revolving Commitment Increase (each a “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 Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.16.
(c) The Loans and Commitments established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without 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 perfected under the UCC or otherwise after giving effect to the establishment of any such Class of Term Loans or any such new Commitments.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.24 shall supersede any provisions in Sections 2.12 Section 2.18 or 10.1 9.08 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (VWR Funding, Inc.)
Incremental Credit Extensions. (a) The Borrower Borrowers may, at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 4.25 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 175,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower Borrowers pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower Borrowers may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it they may elect in its their sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower Borrowers and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a), 8.1(f), 8.2(a) or 8.1(f8.2(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower Borrowers and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Sources: Term Loan Credit Agreement (JELD-WEN Holding, Inc.)
Incremental Credit Extensions. (a) The Borrower may, at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more additional tranches of Loans term loans (the commitments thereof“Incremental Term Loans”) or (ii) increase the amount of the Revolving Credit Commitments (such increase, a “Revolving Credit Commitment Increase” and, together with the Incremental Term Loans, the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental LenderExtensions of Credit”); it being understood provided, that upon the effectiveness of any Incremental Amendment No. 1 referred to below and Amendment No. 2 each constituteconstituted an “at the time that any such Incremental Amendment” with respect Extension of Credit is made (and after giving effect thereto), subject to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
Section 2.14(d), (i) after giving effect subject to any Section 1.12, no Default or Event of Default shall exist and (ii) the Borrower shall be in Pro Forma Compliance with the financial covenant in Section 7.08 (whether or not then required to be tested). Each Incremental Extension of Credit shall be in an aggregate principal amount that is not less than $25 million (provided, that such Incremental Loansamount may be less than $25 million if such amount represents all remaining availability under the limit set forth in the next sentence or if the Administrative Agent consents to such lesser amount). Notwithstanding anything to the contrary herein, the aggregate amount of all Incremental Loans shall not exceed an amount equal to the sum Extensions of Credit (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided thatother than, for the avoidance of doubt, the amount available to the Borrower those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to this clause (z) (ASection 2.16) shall not be reduced by exceed the Term B-1 Loans or Maximum Incremental Extension of Credit Amount.
(b) Subject to Section 1.12, the Term B-2 Loans and effectiveness of any Incremental Amendment (Bas defined below) shall be available at all times and shall not be subject to each of the ratio test described conditions set forth in foregoing clause (x); provided, further, that Section 4.02 and such further conditions as the Borrower may incur and the applicable Lenders and Additional Lenders shall agree; provided that (i) such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans Extensions of Credit shall rank pari passu or junior in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans, (iiiii) the such Incremental Term Loans shall not mature earlier than the Maturity Date;
Date with respect to the Term Loans, (iviii) the such Incremental Term Loans shall not have a shorter Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of the Term Loans;
, (iv) such Incremental Term Loans shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (v) such Incremental Term Loans shall bear interest at rates and be entitled to upfront fees as shall be determined by the Borrower and the applicable new Lenders; provided, however, that if the All-In Yield with respect to any such Incremental Term Loans incurred prior to the date that is 18 months after the Closing Date shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. Any Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the same documentation applicable to the Revolving Credit Facility and Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by the Borrower; provided that, to the extent such terms and documentation are not consistent with the Term Loans with respect to periods on or prior to the Maturity Date thereof (except to the extent permitted by clauses (i) through (v) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added or a restrictive covenant is made more restrictive for the benefit of any Incremental Term Loans, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added or similarly made more restrictive for the benefit of any corresponding existing Term Loans or is made applicable only after the Maturity Date of the Term Loans) and subject to clauses (iiiii) and (iviii) above, the interest rates and the amortization schedule (if any) applicable to any such the Incremental Term Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity Lenders thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(bc) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Extension of Credit. Incremental Term Loans may be made by by, and Revolving Credit Commitment Increase may be provided 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 Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 andLender”); provided, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (with such consent not to be unreasonably withheld, conditioned withheld or delayed) to such Additional Lender’s making such Incremental Term Loans or providing such Revolving Credit Commitment Increases if such consent would be required under Section 10.6(b10.06(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 under this Agreement (or in the case of a Revolving Credit Commitment Increase to be provided by an existing Revolving Credit Lender, an increase to such Lender’s applicable Revolving Credit Commitment) pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment mayshall, without the consent of any other the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, Borrower to effect the provisions of this Section including2.14. The Borrower may use the proceeds of the Incremental Term Loans or Revolving Credit Commitment Increases, subject as applicable, for any purpose not prohibited by this Agreement. No Lender shall be obligated to clause provide any Incremental Term Loans or Revolving Credit Commitment Increases, unless it so agrees.
(bd) of Notwithstanding anything to the contrary in this Section 2.192.14 or in Article IV or otherwise in this Agreement, amendments so long as no Event of Default has occurred pursuant to Sections 2.3(aSection 8.01(a) and 2.5(bor (f), the lenders providing any Incremental Extension of Credit in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Extension of Credit such that the Permitted Acquisition may be consummated on a “certain funds” basis.
(e) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Lenders in connection with Extension of Credit provided on a Limited Condition Transaction“certain funds” basis) subject and (ii) reaffirmation agreements and/or such amendments to the satisfaction Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Extensions of Credit are provided with the benefit of the condition set forth applicable Loan Documents.
(f) Upon each increase in clause the Revolving Credit Commitments pursuant to this Section 2.14, (di) below each 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 Revolving Credit Commitment Increase (each, a “Revolving Commitment Increase Lender”) in respect of such other conditions as increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such deemed assignment and assumption of participations, the parties thereto shall agree percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the effective percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (ii) if on the date of such increase, there are any Revolving Credit Loans outstanding, such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Incremental Revolving Credit Loans for any purpose being prepaid. 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 prohibited by this Agreementapply to the transactions effected pursuant to the immediately preceding sentence.
(dg) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (Meredith Corp)
Incremental Credit Extensions. (a) The Borrower may, Borrowers may at any time or from time to time after the Closing Datetime, by notice from the Company Borrower Borrowing Agent 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 Loans term loans maturing on or after the Revolving Credit Termination Date (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (b) one or more increases in the amount of the Revolving Credit Commitments or the addition of a new revolving Credit to be provided to one or more Foreign Subsidiary Borrowers (each such increase or new Revolving Credit, and a Lender making such loans, an “Incremental LenderRevolving Commitment Increase”); it being understood , provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to at the time of any such request and upon the effectiveness of any Incremental LoansAmendment referred to below, no Default or Event of Default shall exist and (ii) the Borrowers shall be in compliance with the covenants set forth in Section 6.21 determined on a pro forma basis as of the date of such Incremental Term Loan or Revolving Commitment Increase and the last day of the most recently ended fiscal quarter (or, if no fiscal quarter cited in Section 6.21 has passed, the covenants in Section 6.21 for the first fiscal quarter cited in such Section shall be satisfied as of the last four fiscal quarters ended), in each case, as if such Incremental Term Loan or Revolving Commitment Increase had been outstanding on the last day of such fiscal quarter of the Borrowers for testing compliance therewith. Each Incremental Term Loan and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 (provided, that, such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Revolving Commitment Increases and the Incremental Term Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or $125,000,000.
(b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, The Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall (a) rank pari passu or junior in right of payment and of security with the other Revolving Loans and Commitments hereunder;
(iiib) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) be subject to clauses (iii) standard terms and (iv) above, conditions applicable to terms loans to be agreed upon by the interest rates Borrowers and Lenders making such Incremental Term Loans and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower Administrative Agent and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like set forth in the Incremental Amendment (defined below).
(c) Increases in the amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with the Revolving Credit shall be on the same terms applicable to all Lenders providing such Incremental Loan, which shall not the Revolving Credit. The terms of any new Credit to be included and equated provided to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans Foreign Subsidiary Borrower shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as those of the LoansRevolving Credit, other than with respect to interest rates, terms with respect to Loans denominated in currencies other than Dollars, and borrowing mechanics and operational matters. All Collateral (including any collateral securing such new Credit) shall be shared among all Lenders pursuant to customary arrangements (including the provisions of Section 10.26) and limitations that would be customary had such Incremental Term Loans and Revolving Credit Increases been included in the Agreement on the Closing Date (including with respect to mandatory and voluntary prepayments adverse tax consequences).
(unless the applicable Incremental Lenders agree to a less than pro rata share of such prepaymentsd) and Guarantees. Each notice from the Company Borrower to the Administrative Borrowing Agent pursuant to this Section 2.19(a) 2.15 shall set forth (i) the requested amount and proposed terms of the relevant Incremental Loans.
Term Loans or Revolving Commitment Increase and (cii) the date on which such Incremental Term Loans or Revolving Commitment Increases are requested to become effective (which shall not be less than thirty (30) Business Days nor more than sixty (60) days after the date of such notice, unless the Administrative Agent otherwise agrees). Incremental Terms Loans may be made and Revolving Commitment Increases may be provided by any existing Lender or any Additional (and each existing Lender (provided that no Lender shall be obligated will have the right, but not the obligation, to make a portion of any Incremental Term Loan) and each existing Lender providing the Revolving Credit will have the right to provide a portion of any Revolving Commitment Increase (pro rata in accordance with its Revolving Commitment), on terms permitted in this Section 2.19 2.15 and otherwise on terms reasonably acceptable to the Administrative Agent) and, to the extent that existing Lenders do not permitted in this Section 2.19agree to make such Revolving Commitment Increases or to make such Incremental Term Loans, all terms and documentation with respect to then by any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be other Eligible Assignee reasonably satisfactory to the Administrative Agent; provided that Borrowers (any such other Eligible Assignee being called an “Additional Lender”), provided, that, the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.6(b) 10.10 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 (other than a new Credit to be provided to a Foreign Subsidiary Borrower), an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (to, or an “Incremental Amendment”) to amendment and restatement of, this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowerapplicable Borrowers, each Lender agreeing that agrees to provide such Commitment, if any, each Additional Lender, if any, and the Administrative AgentAgent (each an “Incremental Amendment”). The An Incremental Amendment may, without the consent of any other Loan Party or 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 Borrowerapplicable Borrowers, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.15. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition following: (i) the conditions set forth in clause Section 3.1 shall have been satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by the chief financial officer of the Loan Parties (dit being understood that all references to “the date of such Credit Extension” or similar language in such Section 3.1 shall be deemed to refer to the effective date of such Incremental Amendment), (ii) below if requested, the Administrative Agent shall have received reaffirmation agreements, legal opinions, board resolutions and other closing certificates, documents and agreements together with such amendments and/or supplements to the Collateral Documents as the Administrative Agent shall reasonably request (including, in the case of Mortgages, mortgage amendments and date down endorsements with respect to the applicable title insurance policies) and (iii) such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower applicable Borrowers will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement.
(de) Each No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increase, unless it so agrees; provided, however, that each Lender shall, by notice to the Borrowing Agent and the Administrative Agent given not more than ten (10) days after the date of the representations and warranties made by any Loan Party in Administrative Agent’s notice, either agree or decline to provide a portion of the Incremental Term Loans or Revolving Commitment Increase. In the event that, on the tenth (10th) day after the Administrative Agent shall have delivered a notice pursuant to the Loan Documents first sentence of Section 2.15(a), the Lenders providing the Incremental Term Loans or Revolving Commitment Increase have agreed to provide an amount less than the increase requested by the Borrowers (subject to the maximum aggregate permitted amount thereof of $125,000,000), the Borrowers may arrange through Fifth Third Bank for one or more Additional Lenders to provide the difference; provided, however, that each such Additional Lender shall be true an Eligible Assignee, and correct in all material respects (except where the Borrowers and each Additional Lender shall execute such representations and warranties are already qualified by materiality, in which case such representation and warranty documentation as the Administrative Agent shall be accurate in all respects) on and as reasonably request to evidence its commitment of the Incremental Facility Closing Date as term Loan or Revolving Credit Commitment. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.15, if made on the increase relates to the Revolving Credit, (i) each Lender immediately prior to such increase will automatically and as without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “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 dateLender’s participations hereunder in outstanding Letters of Credit and Swing Loans and (ii) if, except on the date of such increase, there are any Revolving Loans under the Revolving Credit outstanding, such Revolving Loans shall on or prior to the extent effectiveness of such representations Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and warranties expressly relate to an earlier dateany costs incurred by any Lender in accordance with Section 8.1, in which the case of each of clauses (i) and (ii) such representations that, after giving effect to each such deemed assignment and warranties assumption of participations and prepayment and making of Revolving Loans, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit, (y) participations hereunder in Swing Loans and (z) Revolving Loans held by each Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. 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 have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier datenot apply to the transactions effected pursuant to the immediately preceding sentence.
(ef) Notwithstanding anything to the contrary herein, this This Section 2.19 2.15 shall supersede any provisions in Sections 2.12 Section 10.7 or 10.1 10.11 to the contrary other than clause (i) and clause (ii)(B)-(H) thereof; provided, that, Sections 2.9 and 10.11 and the Borrower definition of Required Lenders may be amended to permit Lenders providing Incremental Term Loans and Revolving Commitment Increases to share ratably in the benefits of this Agreement and the Administrative Agent may amend Section 2.12 other Loan Documents and address matters relating to implement any Incremental Amendmenta specific tranche, and the reallocation of Commitments and Loans described in clause (e) above shall supersede the provisions of clause 10.11(ii)(H). Such amendment shall be effected in such a manner as to preserve pro rata sharing and voting among Lenders in each tranche and across tranches (other than with respect to Loans borrowed or prepaid at the option of the applicable Borrower, or Letter of Credit requested, if applicable, under a specific tranche).
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (ii) one or more increases in the amount of the Revolving Credit Commitments (each such increase, and a Lender making such loans“Revolving Commitment Increase” and, an together with any Incremental Term Loans, a “Incremental LenderCredit Increase”); it being understood provided that both at the time of any such request and upon the effectiveness of any Incremental Amendment Noreferred to below, no Event of Default shall exist. 1 and Amendment No. 2 each constituteconstituted Each Credit Increase shall be in an “Incremental Amendment” with respect aggregate principal amount that is not less than $25,000,000 (or such lower amount that either (A) represents all remaining availability under the limit set forth in the next sentence or (B) is reasonably acceptable to the establishment of Administrative Agent). Notwithstanding anything to the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loanscontrary herein, the aggregate amount of Incremental Loans the Credit Increases shall not exceed an amount equal to the sum greater of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) $500,000,000 or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the maximum amount at the time of all prior voluntary prepayments such proposed Credit Increase that could be incurred such that after giving pro forma effect to such Credit Increase, the Senior Secured Net Leverage Ratio does not exceed 5.00:1.00 as of the Loans, Incremental Loans and Indebtedness incurred pursuant to last date for which Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available 5.04 Financials have been delivered to the Borrower pursuant to this clause Administrative Agent. Each Incremental Term Loan (z1) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the then-existing Term Loans, (iii2) the Incremental Loans shall not mature earlier than the Term Loan Maturity Date;
, (iv3) the Incremental Loans shall have a Weighted Average Life to Maturity no not shorter than the remaining Weighted Average Life to Maturity of the Loans;
then-existing Term Loans (vwithout giving effect to annual amortization on any Incremental Term Loan Facility not in excess of 1% of the principal amount thereof), (4) subject to clauses (iiishall be treated in the same manner as the Term Loans for purposes of Section 2.13(e), Section 2.13(g) and Section 2.17(b), (iv5) above, the interest rates and the amortization schedule applicable to any such Incremental Term Loans shall be determined by the Borrower and the applicable Incremental Lenders;
Lenders thereunder, and (vi6) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii))above, with such increased amount being equated to interest margin any terms for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Term Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared inconsistent with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the then-existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Term Loans shall be increased reasonably satisfactory to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and GuaranteesAdministrative Agent. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.24 shall set forth the requested amount and proposed terms of the relevant Credit Increases. Incremental Loans.
(c) Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, 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 Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative AgentLender”); 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, if such consent would be required under Section 10.6(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 Loans 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, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect effectuate the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.24. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of (or waived) on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.01 (it being understood that all references to “the date of such Credit Event” or similar language in such Section 4.01 shall be deemed to refer to the effective date of such Incremental Amendment). The Borrower will may use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Credit Increases unless it so agrees in its sole discretion. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each 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 Revolving Commitment Increase (each, a “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 Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.16.
(c) The Loans and Commitments established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without 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 perfected under the UCC or otherwise after giving effect to the establishment of any such Class of Term Loans or any such new Commitments.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.24 shall supersede any provisions in Sections 2.12 Section 2.18 or 10.1 9.08 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, Company may at any time or from time to time after the Closing Date, by notice from the Company Borrower 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 Loans term loans (the commitments thereof, "INCREMENTAL TERM LOANS") or (b) one or more increases in the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment amount of the Revolving Credit Commitments (each such increase, a "REVOLVING COMMITMENT INCREASE"), provided that 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 and at the time that any such Incremental Term B-2 Commitments as “Incremental Commitments” Loan is made (and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any thereto) no Default or Event of Default shall exist and the Company shall be in compliance with each of the covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Company as if such Incremental LoansTerm Loans had been outstanding on the last day of such fiscal quarter of the Company for testing compliance therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth 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 an amount equal to the sum of $100,000,000. The Incremental Term Loans (xa) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans, (iiib) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith the Term Loans (and after giving effect but may have nominal amortization prior to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereofdate) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest ratec) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except except as set forth in Section 2.19(a)above, the Incremental Loans shall be treated substantially the same as (and in any event no more favorably than) the LoansTerm Loans (in each case, including with respect to mandatory and voluntary prepayments prepayments), provided that (unless i) the terms and conditions applicable to Incremental Term Loans maturing after the Maturity Date with respect to the Term Loans 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 Term Loans and (ii) the Incremental Term Loans may be priced differently than the Term Loans, 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 be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term Loans) relating to the Term Loans immediately prior to the effectiveness of the applicable Incremental Amendment by more than 0.25%, the Applicable Rate relating to the Term Loans shall be adjusted to be equal to 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 agree providing such Incremental Term Loans) relating to a less than pro rata share of such prepayments) and GuaranteesIncremental Term Loans minus 0.25%. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (and each existing Term Lender (provided that no Lender shall be obligated will have the right to make a portion of any Incremental Term Loan) , and each existing Revolving Credit Lender will have the right to provide a portion of any Revolving Commitment Increase, in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all section 2.15 and otherwise on terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory acceptable to the Administrative Agent; ) or 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 (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s 's or Additional Lender's making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.6(b10.07(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”"INCREMENTAL AMENDMENT") to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the 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, 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 BorrowerAgent, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebySection. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an "INCREMENTAL FACILITY CLOSING DATE") of each of the condition conditions set forth in clause Section 4.02 (dit 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) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “agree. No more than four Incremental Facility Closing Date”)Dates may be selected by the Company. The Borrower Company will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement.
. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Any Revolving Commitment increase may be allocated between the Dollar Revolving Credit Facility and the Multicurrency Revolving Credit Facility as determined by the Company in consultation with the Administrative Agent. Upon each increase in the Revolving Credit Commitments pursuant to this Section, (da) Each if such increase is under the Multicurrency Revolving Credit Facility, each Multicurrency 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 representations Revolving Commitment Increase (each a "REVOLVING COMMITMENT INCREASE LENDER") in respect of such increase, and warranties each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Multicurrency Revolving Credit Lender's participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans and Overdraft Facility Loans held by each Multicurrency Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Multicurrency Revolving Credit Commitments of all Multicurrency Revolving Credit Lenders represented by such Multicurrency Revolving Credit Lender's Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding under the Facility being increased, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Loan Party Lender in or 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 Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateimmediately preceding sentence.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Sources: Credit Agreement (UGS PLM Solutions Asia/Pacific INC)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower 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 Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”), and (b) one or more increases in the amount of the Revolving Commitments (each such increase, a Lender making such loans“Revolving Commitment Increase” together with any Incremental Term Loans, an referred to herein as a “Incremental LenderCredit Increase”); it being understood provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; 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 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 (ii) the Consolidated Leverage Ratio, determined on a pro forma basis as of the last day of the most recent fiscal quarter for which financial statements are available (but based on Consolidated Total Debt at the time of and after giving effect to any such Incremental LoansCredit Increase) shall not exceed 6.00 to 1.00 (or, if less, the maximum Consolidated Leverage Ratio permitted as of the end of the most recently ended fiscal quarter pursuant to Section 7.1(a)). Each Credit Increase shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 on no more than two occasions if such amount is not less than $10,000,000 on each such occasion, and such amount may be a lesser amount 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 Incremental Loans the Credit Increases shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such $125,000,000. The Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Term Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
Facilities, (iiiB) the Incremental Loans shall not mature earlier than the Tranche B Maturity Date;
(iv) the Incremental Loans Date and shall have a Weighted Average Life weighted average life to Maturity no shorter than the Weighted Average Life maturity (pursuant to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the such amortization schedule applicable to any such Incremental Loans shall schedules as may be determined by the Borrower and the lenders thereof) that is no shorter than the then-remaining weighted average life to maturity of the Tranche B Term Loans (as the aggregate amount thereof may have been reduced and as the scheduled amortization thereof may have been modified as of such date), (C) except as set forth above or in the applicable Incremental Lenders;
Amendment, shall be treated substantially the same as the Tranche B Term Loans (vi) no Default or Event of Default (orin each case, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date including with respect to any Incremental Amendment entered into in connection therewith (mandatory and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)voluntary prepayments), with such increased amount being equated to and (D) will accrue interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as at rates determined by the Borrower and the lenders providing such Incremental Term Loans, which rates may be higher or lower than the rates applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso Tranche B Term Loans, provided that if the initial yield on such Incremental Term Loans (as determined by the Administrative Agent to be equal to the sum of (1) the initial margin above the Eurodollar Rate on such Incremental Term Loans and (2) if such Incremental Term Loans are initially made at a discount or all the Lenders making the same receive a fee (other than any customary arrangement, underwriting, structuring, syndication or similar fee but not any upfront fee paid to Lenders in this clause their capacities as lenders) directly or indirectly from Holdings, the Borrower or any Subsidiary for doing so (vii))the amount of such discount or fee, expressed as a percentage of the Incremental Term Loans, being referred to herein as “Incremental OID”), original issue discount (equated to interest based on an assumed four-year the amount of such Incremental OID divided by the average life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rateTerm Loans) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon ) the effectiveness sum of such Incremental Amendment, (x) the Applicable Margin then in effect for Tranche B Term Loans that are Eurodollar Loans and (y) if all Tranche B Term Lenders received upfront or similar fees directly or indirectly from Holdings, the Borrower or any Subsidiary for making the Tranche B Term Loans (the amount of such fees, expressed as a percentage of the sum of the original aggregate amount of the Tranche B Term Commitments, being referred to herein as “Initial OID”), the amount of such Initial OID divided by the average life to maturity of the Tranche B Term Loans as of the Closing Date, then the Applicable Margin then in effect for Tranche B Term Loans shall automatically be increased by the Incremental Yield Differential; provided, that if effective upon the making of the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Term Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Credit Increases. Incremental Loans.
(c) Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, 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 Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 andLender”), to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent and, in the case of a Revolving Commitment Increase, each Issuing Lender shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, if such consent would be required under Section 10.6(b) 10.6 for an assignment of Tranche B Term Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Loans Credit Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebySection. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions set forth in the Incremental Amendment. No Lender shall be obligated to provide any Credit Increases, unless it so agrees. Upon each increase in the Revolving Commitments pursuant to this Section, the participations held by the Revolving Lenders in the Revolving L/C Exposure and Swingline Loans immediately prior to such increase will be reallocated so as to be held by the Revolving Lenders ratably in accordance with their respective Revolving Percentages after giving effect to such Revolving Commitment Increase. If, on the date of a Revolving Commitment Increase, there are any Revolving Loans outstanding, the Borrower shall prepay such Revolving Loans in accordance with this Agreement on the date of effectiveness of such Revolving Commitment Increase (but the Borrower may finance such prepayment with a concurrent borrowing of Revolving Loans from the Revolving Lenders in accordance with their Revolving Percentages after giving effect to such Revolving Commitment Increase). The Borrower will may use the proceeds of the Incremental Loans each Credit Increase for any purpose not prohibited by this AgreementAgreement unless otherwise agreed in connection with such Credit Increase.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Effective Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request one or more additional tranches of or additions to Term Loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making in an aggregate principal amount such loans, an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loansthe incurrence thereof, the aggregate amount Fixed Charge Coverage Ratio for the Borrower’s most recently ended four full Fiscal Quarters for which internal financial statements are available immediately preceding the date on which such incurrence is consummated (but excluding the cash proceeds of Incremental Loans shall not exceed an amount equal to the sum of (xsuch incurrence) an unlimited amount would have been at any time so long as the Total Net First Lien Leverage Ratio least 2.00:1.00 determined on a Pro Forma Basis Basis, as if the additional Indebtedness had been incurred at the beginning of such four-quarter period (but without such amount not to include loans which constitute Permitted Refinancing Indebtedness of the Loans hereunder), (the “Incremental Term Loans”), 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 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, (ii) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, all of the representations and warranties of each Credit Party set forth in Section 8 and in each other Credit Document shall be true and correct in all material respects as of such time (except to the cash proceeds remaining on the balance sheet extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date) and (iii) all Incremental LoansTerm Loans (and all interest, fees and other amounts payable thereon) as of shall be Obligations under this Agreement and the most recently completed period of four consecutive fiscal quarters for which the financial statements other applicable Credit Documents and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is shall be secured by the Collateral Security Documents, and guaranteed under the Guaranty, on a pari passu basis with all other Obligations of the Obligations prior Borrower under this Agreement secured by the Security Documents and guaranteed under the Guaranty.
(b) Incremental Term Loans that are added to the existing tranche of Term Loans shall have identical terms to such time, plus (z) $285,000,000 (less, in the case existing tranche of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Loans. All other Incremental Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
Term Loans; provided, however, that (iiii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) interest rate applicable to the Incremental Term Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule may differ from that applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (orexisting Term Loans, in connection with a Limited Condition Transactionbut, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date other than with respect to any Specified Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental AmendmentTerm Loans, if the all-in-yield “effective yield” applicable to a given tranche of Incremental Term Loans (whether in the form which, for such purposes only, shall be deemed to take account of any interest rate marginsbenchmark floors, original issue discount, recurring fees and all upfront or similar fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated amortized over the shorter of (x) the weighted average life of such loans and (y) four years) payable to interest based on an assumed four-year life to maturity orall Lenders providing such Incremental Term Loans and the effect of any LIBO Rate or Base Rate floors, if shorter, in each case as determined in good faith by the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount)Administrative Agent, but excluding exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to Term Loans) determined as of the interest rate) with respect to initial funding date for such Incremental Term Loans exceeds the existing Loans, after giving effect “effective yield” then applicable to any increase Loans or repricing thereof that has theretofor become effective any other tranche of Incremental Term Loans (it being understood that if any such repricing was effected determined on the same basis as a refinancing tranche, provided in the OID applicable to the refinanced loans shall be taken into account), preceding parenthetical) by more than 50 basis points 0.50% (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such existing Loans subject to a Yield Differential shall automatically be increased by the Yield Differential effective upon the making of the applicable Incremental Yield Differential; providedTerm Loans, that if (ii) the final stated maturity date for a given tranche of Incremental Term Loans include an interest-rate floor greater may be later (but not sooner) than the interest rate floor Maturity Date, (iii) the amortization requirements for a given tranche of Incremental Term Loans may differ, so long as the average weighted life to maturity of such Incremental Term Loans is no shorter than the average weighted life to maturity applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such then outstanding Term Loans, and in such case (iv) the interest rate floor (but not the Applicable Margin) applicable other terms of a given tranche of Incremental Term Loans may differ if reasonably satisfactory to the Administrative Agent.
(c) Each tranche of Incremental Term Loans shall be increased in an aggregate principal amount that is not less than $25,000,000 (or such lesser amount as agreed to by the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness Administrative Agent) and shall be swapped to a floating rate on a customary matched-maturity basisin an increment of $1,000,000 (provided that in each case such amount may be less if such amount represents all remaining availability under the limit set forth in the first sentence of Section 2.14(a)).
(bd) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) . Incremental Term Loans may be made by any existing Lender or any Additional (but no existing Lender (provided that no Lender shall be obligated will have an obligation to make a portion of any Incremental Term Loan) on terms permitted in this Section 2.19 andor by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent 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 if such consent would be required under Section 10.6(b) 13.04 for an assignment of Loans Loans, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by the 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, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.14. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition conditions set forth in clause Section 7 (dit being understood that all references to “the date of such Credit Event” or similar language in such Section 7 shall be deemed to refer to the effective date of such Incremental Amendment) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents . No Lender shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the obligated to provide any Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateTerm Loans unless it so agrees.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 13.06 or 10.1 13.12 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Effective Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Lender making such loans, an “Incremental Lender”); 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 have occurred and be continuing and at the time that any such Incremental Term Loan is made no Default or Event of Default shall have occurred and be continuing or result therefrom, (ii) all representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on the date such Incremental Term Loan is made (it being understood and agreed that Amendment No. 1 (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and Amendment No. 2 each constituteconstituted an correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such date), (iii) the Borrower shall have demonstrated to the Administrative Agent’s reasonable satisfaction that the full amount of the respective Incremental Amendment” Term Loans may be incurred without violating the terms of any other material debt of Holdings and its Subsidiaries and (iv) (x) calculations are made by the Borrower with respect to the establishment Total Leverage Ratio, determined on a Pro Forma Basis as of the last day of the Calculation Period most recently ended, and such calculations shall show a Total Leverage Ratio that is, with respect to the incurrence of Incremental Term B-2 Commitments Loans prior to July 1, 2012, less than or equal to 0.50 less than the maximum Total Leverage Ratio set forth in Section 10.09 for the Fiscal Quarter then most recently ended and, with respect to the incurrence of Incremental Terms Loans on or after July 1, 2012, less than or equal to 0.25 less than the maximum Total Leverage Ratio set forth in Section 10.09 for the Fiscal Quarter then most recently ended and (y) calculations are made by the Borrower with respect to the Interest Expense Coverage Ratio, determined on a Pro Forma Basis as “of the last day of the Calculation Period most recently ended, and such calculations shall show an Interest Expense Coverage Ratio that is, with respect to the incurrence of Incremental Commitments” Term Loans prior to July 1, 2012, greater than or equal to 0.50 greater than the minimum Interest Expense Coverage Ratio set forth in Section 10.08 for the Fiscal Quarter then most recently ended and, with respect to the incurrence of Incremental Term Loans on or after July 1, 2012, greater than or equal to 0.25 greater than the minimum Interest Expense Coverage Ratio set forth in Section 10.08 for the Fiscal Quarter then most recently ended, (v) each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and (vi) the Term B-2 Loans as “Incremental Loans”; provided that:
Borrower shall have delivered to the Administrative Agent and each Lender a certificate executed by an Authorized Officer of the Borrower, (A) certifying to the best of such officer’s knowledge, compliance with the requirements of preceding clauses (i) after giving effect through (v), inclusive, and (B) containing the calculations (in reasonable detail) required by the preceding clauses (iv) and (v). Notwithstanding anything to any such Incremental Loansthe contrary herein, the aggregate amount of the Incremental Term Loans shall not exceed an amount equal to the sum $50,000,000. Each tranche of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other existing Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by treated substantially the Borrower and same as the applicable Incremental Lenders;
existing Loans (vi) no Default or Event of Default (orin each case, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date including with respect to any Incremental Amendment entered into in connection therewith (mandatory and after giving effect to any Incremental Loans made thereundervoluntary prepayments); and
provided, however, that (viii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect applicable to the Incremental Term Loans made thereunder may differ from that applicable to the existing Loans, but if the “effective yield” applicable to a given tranche of Incremental Term Loans (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect which, for such purposes only, shall be deemed to take account of any interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii)))benchmark floors, recurring fees and all upfront or similar fees or original issue discount (equated amortized over the shorter of (x) the weighted average life of such loans and (y) four years) payable to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount all Lenders providing such Incremental Term Loans but exclusive of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to Term Loans) determined as of the interest rate) with respect to initial funding date for such Incremental Term Loans exceeds the existing Loans, after giving effect “effective yield” then applicable to any increase Loans or repricing thereof that has theretofor become effective any other tranche of Incremental Term Loans (it being understood that if any such repricing was effected determined on the same basis as a refinancing trancheprovided in the preceding parenthetical, with the OID applicable comparative determination to be made in the refinanced loans shall be taken into account), reasonable judgment of the Administrative Agent consistent with generally accepted financial practice) by more than 50 basis points 0.50% (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such existing Loans (including, for the avoidance of doubt, Revolving Loans) subject to a Yield Differential shall automatically be increased by the Yield Differential effective upon the making of the applicable Incremental Yield Differential; providedTerm Loans, that if (ii) the final stated maturity date for a given tranche of Incremental Term Loans include an interest-rate floor greater may be later (but not sooner) than the interest rate floor latest Maturity Date hereunder, (iii) the amortization requirements for a given tranche of Incremental Term Loans may differ, so long as the average weighted life to maturity of such Incremental Term Loans is no shorter than the average weighted life to maturity applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such then outstanding Term Loans, and in such case (iv) the interest rate floor (but not the Applicable Margin) applicable other terms of a given tranche of Incremental Term Loans may differ if reasonably satisfactory to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and GuaranteesAdministrative Agent. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) . Incremental 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 Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 andLender”), to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent 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 if such consent would be required under Section 10.6(b13.04(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by Holdings, the 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, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section, provided, however, that no such amendment shall amend, modify or supplement any matter described in the first or second proviso of Section including, subject to clause (b13.12(a) without the consent of this the requisite Lenders as provided in Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby13.12(a). The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition conditions set forth in clause Section 7 (dit being understood that all references to “the Borrowing Date” or similar language in such Section 7 shall be deemed to refer to the effective date of such Incremental Amendment) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Term Loans for only to finance a Permitted Acquisition or make Capital Expenditures and to pay fees and expenses related to such uses and to the incurrence of the Incremental Loans. No Lender shall be obligated to provide any purpose not prohibited by this AgreementIncremental Term Loans, unless it so agrees.
(db) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 13.06 or 10.1 13.12 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (Global Cash Access Holdings, Inc.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower 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 or additions to an existing Class of Term Loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”, ” and a Lender making any such loansClass, an “Incremental LenderSeries”) or (b) one or more increases in the amount of the Tranche 2 Revolving Credit Commitments on the same terms as the Tranche 2 Revolving Credit Facility (except for interest rate margins and commitment fees) (a “Revolving Commitment Increase”); it being understood , provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect to thereto) no Event of Default shall exist and (ii) the Borrower shall be in compliance with the covenants set forth in Section 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 cited in such Section shall be satisfied as of the last four quarters ended), in each case, as if such Incremental Term Loans or any borrowings under any such Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith. Each tranche of Incremental LoansTerm Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases, when aggregated with the amount of Permitted Notes issued in reliance on Section 7.03(s)(i) and Section 7.03(s)(ii)(x), shall not exceed an amount equal to the sum of (x) an unlimited amount at any time $350,000,000 (the “Initial Incremental Amount”) plus (y) the Borrower may incur additional Incremental Term Loans and/or Revolving Commitment Increases (a “Ratio-Based Incremental Facility”) so long as the Total Net Borrower’s First Lien Secured Leverage Ratio Ratio, determined on a Pro Forma Basis (but without giving effect to as of the cash proceeds remaining on the balance sheet of such Incremental Loans) as last day of the most recently completed period of four consecutive fiscal quarters ended Test Period for which the financial statements and certificates were required by to have been delivered pursuant to Section 5.1(a6.01(a) or (b), as applicable (or, if no Test Period has passed, as of the case may belast four quarters ended), have 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 Revolving Commitment Increase) had been or were required to have been delivered does outstanding on the last day of such four quarter period, shall not exceed 4.35 3.50 to 1.00 1.00. The Incremental Term Loans (without giving effect to any contemporaneous borrowing under clause (za) below), plus (y) shall rank pari passu or junior in right of payment and of security with the amount of all prior voluntary prepayments of the Loans, Incremental Revolving Credit Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c))Term Loans; provided that, for the avoidance that any Incremental Term Loans ranking junior in right of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans payment and (B) security shall be available at all times and shall not be subject deemed to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans for purposes of calculating the First Lien Secured Leverage Ratio with respect to any incurrence of a Ratio-Based Incremental Facility, (iiib) the Incremental Loans shall not mature earlier than the Maturity Date;
Date with respect to the Term B-23 Loans, (ivc) the Incremental Loans shall have a Weighted Average Life to Maturity no not shorter than the remaining Weighted Average Life to Maturity of then-existing Term B-23 Loans and (d) the Loans;
(v) Applicable Rate for the Incremental Term Loan, and subject to clauses clause (iii) and (ivc) above, amortization for the interest rates and the amortization schedule applicable to any such Incremental Term Loans shall be determined by the Borrower and the applicable new Lenders; provided, however, that if any such additional Incremental Lenders;
Term Loans are requested prior to November 14, 2014,the date that is eighteen (vi18) no Default or Event of Default months after the Amendment No. 7 Effective Date (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(ai) or 8.1(f)) shall exist on the interest rate margins for the Incremental Facility Closing Date Term Loans shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to any Incremental Amendment entered into in connection therewith Term B-23 Loans plus 50 basis points (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if unless the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject margins applicable to the first proviso in this clause (vii)Term B-23 Loans are increased to the extent necessary to achieve the foregoing), with such increased amount being equated to interest margin (ii) solely for purposes of determining the foregoing clause (i), the interest rate margins applicable to any increase Term Loans or Incremental Term Loans shall be deemed to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined include all upfront or similar fees or original issue discount payable by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject generally to the first proviso in this clause (vii))), original issue discount (equated to interest Lenders providing such Term Loans or such Incremental Term Loans based on an assumed four-year life to maturity or, and (iii) if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring lowest permissible Eurocurrency Rate is greater than 0.75% or other fees payable in connection therewith that are not shared with all Lenders providing the lowest permissible Base Rate is greater than 1.75% for such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Term Loans, the differential difference between such interest rate floors “floor” and 0.75%, in the case of Eurocurrency Rate Incremental Term Loans, or 1.75%, in the case of Base Rate Incremental Term Loans, shall be equated to the interest rate margins margin for purposes of determining whether an increase 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 Applicable Margin shall be required, but only Term Loans to the extent an increase in the interest rate floor applicable such differences are reasonably satisfactory to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and GuaranteesAdministrative Agent. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (but each existing Lender (provided that no Lender shall be obligated will not have an obligation to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to Term Loan or any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding portion of any terms applicable after the Maturity DateRevolving Commitment Increase) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative natureother financial institution being called an “Additional Lender”), shall in each case be reasonably satisfactory to the Administrative Agent; 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 if or providing such Revolving Commitment Increases to the extent any such consent would be required under Section 10.6(b10.07(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, executed by the 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 Loan Party, Agents or Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)2.14. The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) if the increase relates to the Revolving Credit Facility, each 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 Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the 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.
(db) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, Company may at any time or from time to time after the Closing Amendment Effective Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (x) one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (y) one or more increases in the amount of the Revolving Credit Commitments (each such increase, and a Lender making such loans, an “Incremental LenderRevolving Credit Commitment Increase”); it being understood , provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below (including, in the case of any Incremental Term Loan, after giving effect thereto), no Default or Event of Default shall exist, (ii) the Consolidated Leverage Ratio shall not exceed 4.25:1.00, determined on a pro forma basis as of the last day of the most recent fiscal quarter for which financial statements are required to have been delivered hereunder, in each case, as if such Incremental LoansTerm Loans or Revolving Credit Commitment Increases, as applicable, had been outstanding, and in the case of any Revolving Credit Commitment Increase, fully drawn, on the last day of such fiscal quarter for testing compliance 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 $20,000,000 (provided that such amount may be less than $20,000,000 if (x) such amount represents all remaining availability under the limit set forth in the next sentence 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 an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or $300,000,000.
(b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 ) The Incremental Term Loans (without giving effect to any contemporaneous borrowing under clause (zi) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans, (iiiii) the Incremental Loans shall not mature earlier than the Term Loan Maturity Date;
, (iviii) the Incremental Loans shall not have a Weighted Average Life weighted average life to Maturity no maturity shorter than the Weighted Average Life weighted average life to Maturity maturity of the Loans;
(v) subject to clauses (iii) Term Loans and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except except as set forth in Section 2.19(a2.22(a), the Incremental Loans shall be treated substantially the same as the LoansTerm 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 (unless the applicable as defined below) shall provide that such Incremental Lenders agree Term Loans shall not be subject to mandatory prepayments or be prepaid at a rate or percentage less than pro rata share 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 prepaymentsIncremental 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 Guarantees. conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (iii) the interest rates and amortization schedule applicable to the Incremental Term Loans shall be determined by the Company and the lenders thereof.
(c) Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.22 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Credit Commitment Increases. Incremental Term Loans may be made made, and Revolving Credit Commitment Increases may be provided, 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 Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 andLender”), to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; 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, conditioned delayed or delayedconditioned) 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 10.6(b) 10.06 for an assignment of Loans or 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 Commitment, 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, executed (in the case of such amendment to this Agreement) by the 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, 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 BorrowerCompany, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebySection. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition conditions set forth in clause Section 5.02 (d) below it being understood that all references to “the date of such extension of credit” or similar language in such Section 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 effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will Borrowers may use the proceeds of the Incremental Term Loans and Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Credit Commitment Increases, unless it so agrees.
(df) Each Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.22, (i) each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the representations Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and warranties each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Credit Commitment (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders with Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment and (ii) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Loan Party Lender in or accordance with Section 2.19. 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 Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateimmediately preceding sentence.
(eg) Notwithstanding anything to the contrary herein, this This Section 2.19 2.22 shall supersede any provisions in Sections 2.12 or 10.1 Section 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (ii) one or more increases in the amount of any Class of Revolving Credit Commitments (each such increase, and a Lender making such loans, an “Incremental LenderRevolving Commitment Increase”); it being understood , provided that (A) both at the time of any such request and upon the effectiveness of any Incremental Amendment No. 1 referred to below, no Default or Event of Default shall exist and Amendment No. 2 each constituteconstituted an “at the time that any such Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” Loan is made (and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any thereto) no Default or Event of Default shall exist and (B) the Borrower shall be in compliance with each of the covenants set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental LoansTerm Loan or Revolving Commitment Increase and the last day of the most recent Test Period, 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 Borrower for testing compliance therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth 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) 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 an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), $500,000,000 plus (y) the aggregate amount of all prior voluntary prepayments principal payments made in respect of the Loans, Term Loans as of such Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus Facility Closing Date (z) $285,000,000 (lessincluding, in the case of this clause (z)Term B-6 Loans incurred on the First Amendment Effective Date, the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(cB-2 Term Loans repaid concurrently with the incurrence of Term B-6 Loans on such date)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;.
(iib) the The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans, (iiiii) the Incremental Loans shall not mature earlier than the Maturity Date;
Date with respect to the Term Loans, (iviii) the Incremental Loans shall not have a Weighted Average Life weighted average life to Maturity no maturity that is shorter than the Weighted Average Life weighted average life to Maturity of maturity with respect to the Loans;
(v) subject to clauses (iii) Term Loans and (iv) except as set forth above, shall be treated substantially the same as the Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that (A) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences are reasonably acceptable to the ArrangersAdministrative Agent and (B) the interest rates and the amortization schedule applicable to any such the Incremental Term Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity lenders thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(bc) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (and each existing Term Lender (provided that no Lender shall be obligated will have the right, but not an obligation, to make a portion of any Incremental Term Loan) , and each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Revolving Commitment Increase (other than any Replacement Revolving Commitment), in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all 2.14 and otherwise on terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory acceptable to the Administrative Agent; ) or 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 and the Borrower 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 such consent would be required under Section 10.6(b10.07(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, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebySection. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition conditions set forth in clause Section 4.02 (dit 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) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees.
(d) Each Upon each increase in the Revolving Credit Commitments pursuant to this Section, (i) each 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 representations Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and warranties each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (ii) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Loan Party Lender in or 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 Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateimmediately preceding sentence.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.10.01
Appears in 1 contract
Sources: Credit Agreement (West Corp)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower 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 or additions to an existing Class of Term Loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”, ” and a Lender making any such loansClass, an “Incremental LenderSeries”) or (b) one or more increases in the amount of the Tranche 2 Revolving Credit Commitments on the same terms as the Tranche 2 Revolving Credit Facility (except for interest rate margins and commitment fees) (a “Revolving Commitment Increase”); it being understood , provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect to thereto) no Event of Default shall exist and (ii) the Borrower shall be in compliance with the covenants set forth in Section 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 cited in such Section shall be satisfied as of the last four quarters ended), in each case, as if such Incremental Term Loans or any borrowings under any such Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith. Each tranche of Incremental LoansTerm Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases, when aggregated with the amount of Permitted Notes issued in reliance on Section 7.03(s)(i) and Section 7.03(s)(ii)(x), shall not exceed an amount equal to the sum of (x) $150,000,000350,000,000 (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 unlimited amount at 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 time Term A Loan Increase, the Net Proceeds therefrom shall be used to repay Term B Loans pursuant to Section 2.05(b)(xi) plus (y) the Borrower may incur additional Incremental Term Loans and/or Revolving Commitment Increases (a “Ratio-Based Incremental Facility”) so long as the Total Net Borrower’s First Lien Secured Leverage Ratio Ratio, determined on a Pro Forma Basis (but without giving effect to as of the cash proceeds remaining on the balance sheet of such Incremental Loans) as last day of the most recently completed period of four consecutive fiscal quarters ended Test Period for which the financial statements and certificates were required by to have been delivered pursuant to Section 5.1(a6.01(a) or (b), as applicable (or, if no Test Period has passed, as of the case may belast four quarters ended), have 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 Revolving Commitment Increase) had been or were required to have been delivered does outstanding on the last day of such four quarter period, shall not exceed 4.35 2.753.50 to 1.00 1.00. The Incremental Term Loans (without giving effect to any contemporaneous borrowing under clause (za) below), plus (y) shall rank pari passu or junior in right of payment and of security with the amount of all prior voluntary prepayments of the Loans, Incremental Revolving Credit Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c))Term Loans; provided that, for the avoidance that any Incremental Term Loans ranking junior in right of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans payment and (B) security shall be available at all times and shall not be subject deemed to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans for purposes of calculating the First Lien Secured Leverage Ratio with respect to any incurrence of a Ratio-Based Incremental Facility, (iiib) the Incremental Loans shall not mature earlier than the Maturity Date;
Date with respect to the Term B-2 Loans (ivexcept in the case of any Term A Loan Increase, which shall mature on the Maturity Date with respect to the Term A Loans), (c) the Incremental Loans shall have a Weighted Average Life to Maturity no not shorter than the remaining Weighted Average Life to Maturity of then-existing Term B-2 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;
(v) subject to clauses (iii) and (ivd) the Applicable Rate for the Incremental Term Loan, and subject to clause (c) above, amortization for the interest rates and the amortization schedule applicable to any such Incremental Term Loans shall be 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 Term A Loans); provided, however, that if any such additional Incremental Lenders;
Term Loans are requested prior to March 30,November 14, 2014, (vii) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the interest rate margins for the Incremental Facility Closing Date Term Loans shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to any Incremental Amendment entered into in connection therewith Term B-2 Loans plus 50 basis points (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if unless the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject margins applicable to the first proviso in this clause (vii)Term B-2 Loans are increased to the extent necessary to achieve the foregoing), with such increased amount being equated to interest margin (ii) solely for purposes of determining the foregoing clause (i), the interest rate margins applicable to any increase Term Loans or Incremental Term Loans shall be deemed to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined include all upfront or similar fees or original issue discount payable by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject generally to the first proviso in this clause (vii))), original issue discount (equated to interest Lenders providing such Term Loans or such Incremental Term Loans based on an assumed four-year life to maturity or, and (iii) if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring lowest permissible Eurocurrency Rate is greater than 1.000.75% or other fees payable in connection therewith that are not shared with all Lenders providing the lowest permissible Base Rate is greater than 2.001.75% for such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Term Loans, the differential difference between such interest rate floors “floor” and 1.000.75%, in the case of Eurocurrency Rate Incremental Term Loans, or 2.001.75%, in the case of Base Rate Incremental Term Loans, shall be equated to the interest rate margins margin for purposes of determining whether an increase 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 Applicable Margin shall be required, but only Term Loans to the extent an increase in the interest rate floor applicable such differences are reasonably satisfactory to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and GuaranteesAdministrative Agent. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (but each existing Lender (provided that no Lender shall be obligated will not have an obligation to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to Term Loan or any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding portion of any terms applicable after the Maturity DateRevolving Commitment Increase) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative natureother financial institution being called an “Additional Lender”), shall in each case be reasonably satisfactory to the Administrative Agent; 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 if or providing such Revolving Commitment Increases to the extent any such consent would be required under Section 10.6(b10.07(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, executed by the 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 Loan Party, Agents or Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)2.14. The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) if the increase relates to the Revolving Credit Facility, each 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 Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the 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.
(db) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
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Incremental Credit Extensions. (a) The US Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent Agent, specifying which Class or Classes of Loans are affected (whereupon the Administrative Agent shall promptly deliver a copy to each of the First-Lien Lenders), request (i) one or more additional tranches Series of Loans term loans under this Section 2.24 (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (ii) one or more increases in the amount of the Revolving Credit Commitments under this Section 2.24 (each such increase, and a Lender making such loans“Revolving Commitment Increase” and, an together with any Incremental Term Loans, a “Incremental LenderCredit Increase”); it being understood provided that (x) both at the time of any such request and upon the effectiveness of any Incremental Amendment No. 1 referred to below, no Default or Event of Default shall exist and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(iy) after giving effect to any such Incremental LoansCredit Increase and the use of the proceeds thereof, the Consolidated First-Lien Leverage Ratio shall be less than or equal to the Consolidated First-Lien Leverage Ratio on the Closing Date. Each Credit Increase shall be in an aggregate principal amount that is not less than $100,000,000 (or such lower amount that either (A) represents all remaining availability under the limit set forth in the next sentence or (B) is acceptable to the Administrative Agent). Notwithstanding anything to the contrary herein, the aggregate amount of Incremental Loans the Credit Increases shall not exceed an amount equal to the sum of $750,000,000. Each Incremental Term Loan (x1) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu or junior in right of payment and of security with the other Revolving Loans and Commitments hereunder;
the then-existing Term Loans, (iii2) the Incremental Loans shall not mature earlier than the Latest Maturity Date;
Date then in effect, (iv3) the Incremental Loans shall have a Weighted Average Life an average life to Maturity no maturity not shorter than the Weighted Average Life remaining weighted average life to Maturity maturity of any Class of the Loans;
(v) subject to clauses (iii) then-existing First-Lien Term Loans and (iv4) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether treated in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to same manner as the first proviso in this clause (vii)), with such increased amount being equated to interest margin Term Loans for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (viiSection 2.13(e))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company US Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.24 shall set forth the requested amount and proposed terms of the relevant Credit Increases. Incremental LoansTerm Loans may be made, and Revolving Commitment Increases may be provided, by any existing First-Lien Lender or by any Additional Lender.
(cb) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans 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, executed by the each Borrower, each First-Lien 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, 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 US Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.24. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.Incremental
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Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Effective Date, by written notice from the Company Borrower delivered to the Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request i) one or more additional tranches Classes of Loans term loans or additional or increases in term loans of the same Class of any existing Class of term loans, in each case, in Dollars or any other currency (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments thereof(the “Incremental Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to Section 1.10, at the ratio test described in foregoing clause (x); provided, further, time that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by Term Loan, Incremental Revolving Commitment Increase or Incremental Revolving Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the Borrower and the applicable Incremental Lenders;
proviso to clause (vib) below, no Default or Event of Default (or, in the case of the Incurrence or provision of any Incremental Facility in connection with a Limited Condition Transactionan Acquisition or other Investment or any prepayment, redemption, repurchase, defeasance, acquisition or similar payment of Indebtedness or Equity Interests that requires irrevocable notice in advance thereof, no Default or Event of Default under Section 8.1(a7.01(a), (b), (h) or 8.1(f(i)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (have occurred and after giving effect to any Incremental Loans made thereunder); andbe continuing.
(viib) with respect to any Each tranche of Incremental AmendmentTerm Loans, if the all-in-yield (whether in the form each tranche of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower Revolving Commitments and the applicable each Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which Revolving Commitment Increase shall be deemed to constitute like in an aggregate principal amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are is not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective less than $5,000,000 (it being understood that such amount may be less than $5,000,000 if any such repricing was effected as a refinancing trancheamount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), the OID applicable and, subject to the refinanced loans shall be taken into account), by more than 50 basis points (proviso at the amount end of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in this Section 2.19(a2.20(b), the aggregate amount of the Incremental Loans shall be treated substantially the same as the Term Loans, including with respect Incremental Revolving Commitment Increases and the Incremental Revolving Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to mandatory and voluntary prepayments (unless this Section 2.20(b), shall not exceed, as of the applicable Incremental Lenders agree to a less than pro rata share date of Incurrence of such prepayments) and Guarantees. Each notice from Indebtedness or commitments, the Company Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.sum of
(cA) the Incremental Loans may be made by any existing Lender or any Additional Lender Base Amount plus
(provided that no Lender shall be obligated to make a portion B) an aggregate amount of any Incremental Loan) on terms permitted in this Section 2.19 andIndebtedness, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section includingthat, subject to Section 1.10, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Event to be consummated in connection therewith and assuming that all Incremental Revolving Commitment Increases, Incremental Revolving Commitments and other Incremental Commitments then outstanding and Incurred under this clause (bB) of this Section 2.19were fully drawn), amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall Borrower would be (unless waived or not required by the Incremental Lenders in connection compliance with a Limited Condition Transaction) subject Consolidated First Lien Leverage Ratio as of the last day of the Test Period most recently ended on or prior to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date Incurrence of any such Incremental AmendmentFacility, calculated on a pro forma basis, as if such Incurrence (and such Specified Events) had occurred on the first day of such Test Period, that is no greater than either (x) 4.00:1.00 (whether or not Incurred in connection with an Acquisition, Investment or similar transaction) or (y) if Incurred in connection with an Acquisition, Investment or similar transaction, the Consolidated First Lien Leverage Ratio immediately prior to such Acquisition, Investment or similar transaction (this clause (B), the “Incremental Facility Closing DateRatio Debt Amount” and, together with the Incremental Base Amount, the “Incremental Limit”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.; provided that
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Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower 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 Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (b) one or more increases in the amount of the Revolving Credit Commitments (each such increase, and a Lender making such loans, an “Incremental LenderRevolving Commitment Increase”); it being understood , provided that both at the time of any such request and upon the effectiveness of any Incremental Amendment No. 1 referred to below, no Default or Event of Default shall exist and Amendment No. 2 each constituteconstituted an “at the time that any such Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” Loan is made (and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect thereto) no Default or Event of Default shall exist. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to any such Incremental Loansthe contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed an amount equal to $1,000,000,000 (the sum of (x) an unlimited amount at any time so long as “Incremental Availability”); provided that the Total Net First Lien Leverage Ratio Incremental Availability shall be reduced on a Pro Forma Basis (but without giving effect to dollar-for-dollar basis by the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the aggregate amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I7.03(u). The Incremental Term Loans (a) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans, (iiib) the Incremental Loans shall not mature earlier than the Maturity Date;
Date with respect to the Term Loans and (ivc) shall be treated substantially the same as the 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 shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity may be materially different from those of the Loans;
(v) subject Term Loans to clauses (iii) the extent such differences are reasonably acceptable to the Administrative Agent and (ivii) above, the interest rates and the amortization schedule applicable to any such the Incremental Term Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity lenders thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (and each existing Term Lender (provided that no Lender shall be obligated will have the right, but not an obligation, to make a portion of any Incremental Term Loan) , and each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Revolving Commitment Increase, in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all 2.14 and otherwise on terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory acceptable to the Administrative Agent; ) or 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 (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 such consent would be required under Section 10.6(b10.07(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, executed by Parent, Foreign Holdings, Holdings, the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebySection. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition conditions set forth in clause Section 4.02 (dit 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) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each 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 Revolving Commitment Increase (each a “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 Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the 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.
(db) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, Borrowers’ Agent may at any time or from time to time after the Original Closing Date, by notice from the Company Borrower 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 Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (b) one or more increases in the amount of the Revolving Credit Commitments (each such increase, and a Lender making such loans, an “Incremental LenderRevolving Commitment Increase”); it being understood provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect upon the effectiveness of any Incremental Amendment referred to any such Incremental Loansbelow, the aggregate amount of Incremental Loans conditions precedent to such Credit Extension set forth in Section 4.02 shall not exceed an amount equal to have been satisfied and (ii) the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Senior Secured Leverage Ratio shall be less than 2.75:1.00 determined on a Pro Forma Basis (but without giving effect to for the cash proceeds remaining on the balance sheet of such Incremental Loans) as incurrence of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) Incremental Term Loan or Revolving Commitment Increase.
(b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount Each tranche of all prior voluntary prepayments of the Loans, Incremental Term Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) each Revolving Commitment Increase shall be in an aggregate principal Dollar Amount of not less than $285,000,000 (less50,000,000, in the case of this clause any Revolving Commitment Increase, and $100,000,000 in the case of Incremental Term Loans (zprovided that such amount may be less if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount Dollar Amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for all Incremental Term Loans and the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) Revolving Commitment Increases shall not exceed $750,000,000. The Incremental Term Loans may be reduced by the in Dollars or Euro. The Incremental Term B-1 Loans or the Term B-2 Loans and any Revolving Commitment Increase (Bi) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and have the equal benefit of guarantees and security with the other Loans and Commitments hereunder;
Loans, (iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facilityii) with respect to the Incremental Term Loans made thereunder only, increases shall not have a final maturity date earlier than the Maturity Date for the Tranche B Term Loans (except that up to $250,000,000 of Incremental Term Loans (the “Tranche A Incremental Term Loans”) may have an earlier final maturity date so long as determined by such date is not earlier than the Borrower and final maturity for the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereofTranche A Term Loans) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rateiii) with respect to the existing LoansIncremental Term Loans only, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except except as set forth in Section 2.19(a)clauses (A) and (B) of the proviso hereto, the Incremental Loans shall be treated substantially the same as the Tranche A Term Loans, in the case of Tranche A Incremental Term Loans, or Tranche B Term Loans, in the case of Incremental Tranche B Term Loans (as defined below), (in each case, including with respect to mandatory and voluntary prepayments prepayments); provided that (unless A) except as provided herein, the terms and conditions applicable to Incremental Lenders agree Term Loans may be materially different from those of the Term Loans to a less the extent such differences are reasonably acceptable to the Administrative Agent and (B) the amortization schedule applicable to the Incremental Term Loans shall be determined by the Borrowers’ Agent and the lenders thereof, in each case so long as the Weighted Average Life to Maturity for any Incremental Term Loans shall not be shorter than pro rata share the then remaining Weighted Average Life to Maturity of such prepayments) and Guaranteesthe Tranche A Term Loans, in the case of Tranche A Incremental Term Loans, or Tranche B Term Loans, in the case of Incremental Tranche B Term Loans. Each notice from the Company Borrower to the Administrative Borrowers’ Agent pursuant to this Section 2.19(a) 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or the requested amount of the Revolving Commitment Increase. Incremental Term Loans other than Tranche A Incremental Term Loans are known as “Tranche B Incremental Term Loans.”
(c) Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional Lender (provided that no and each existing Term Lender shall be obligated have the right, but not an obligation, to make a portion of any Incremental Term Loan) , and each existing Revolving Credit Lender shall have the right, but not the obligation, to provide a portion of any Revolving Commitment Increase, in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all 2.14 and otherwise on terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory acceptable to the Administrative Agent) or by any other bank or other financial institution (any such other bank or other financial institution, an “Additional Lender”); provided that the Administrative Agent 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 such consent would be required under Section 10.6(b10.07(b) 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 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, executed by the applicable 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 Agents or 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 Borrowerapplicable Borrowers’ Agent, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.14. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition conditions set forth in clause Section 4.02 (dit 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) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will Borrowers shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement.
(de) Each Upon any Revolving Commitment Increase (i) if the increase relates to the Primary Revolving Credit Facility, each Primary 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 representations Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”), and warranties each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Primary Revolving Credit Facility only), a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Line Loans held by each Primary Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Primary Revolving Credit Commitments of all Primary Revolving Credit Lenders represented by such Primary Revolving Credit Lender’s Primary Revolving Credit Commitment and (ii) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Loan Party Lender in or 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 Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateimmediately preceding sentence.
(ef) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Effective Date, by written notice from the Company Borrower delivered to the Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request i) one or more additional tranches Classes of Loans term loans or additional or increases in term loans of the same Class of any existing Class of term loans, in each case, in Dollars or any other currency (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments thereof(the “Incremental Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to Section 1.10, at the ratio test described in foregoing clause (x); provided, further, time that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by Term Loan, Incremental Revolving Commitment Increase or Incremental Revolving Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the Borrower and the applicable Incremental Lenders;
proviso to clause (vib) below, no Default or Event of Default (or, in the case of the Incurrence or provision of any Incremental Facility in connection with a Limited Condition Transactionan Acquisition or other Investment or any prepayment, redemption, repurchase, defeasance, acquisition or similar payment of Indebtedness or Equity Interests that requires irrevocable notice in advance thereof, no Default or Event of Default under Section 8.1(a7.01(a), (b), (h) or 8.1(f(i)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (have occurred and after giving effect to any Incremental Loans made thereunder); andbe continuing.
(viib) with respect to any Each tranche of Incremental AmendmentTerm Loans, if the all-in-yield (whether in the form each tranche of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower Revolving Commitments and the applicable each Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which Revolving Commitment Increase shall be deemed to constitute like in an aggregate principal amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are is not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective less than $5,000,000 (it being understood that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and, subject to the proviso at the end of this Section 2.20(b), the aggregate amount of the Incremental Term Loans, Incremental Revolving Commitment Increases and the Incremental Revolving Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.20(b), shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of
(A) the Incremental Base Amount plus
(B) an aggregate amount of Indebtedness, such that, subject to Section 1.10, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Event to be consummated in connection therewith and assuming that all Incremental Revolving Commitment Increases, Incremental Revolving Commitments and other Incremental Commitments then outstanding and Incurred under this clause (B) were fully drawn), the Borrower would be in compliance with a Consolidated First Lien Leverage Ratio as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such repricing was effected Incremental Facility, calculated on a pro forma basis, as a refinancing trancheif such Incurrence (and such Specified Events) had occurred on the first day of such Test Period, that is no greater than either (x) 4.00:1.00 (whether or not Incurred in connection with an Acquisition, Investment or similar transaction) or (y) if Incurred in connection with an Acquisition, Investment or similar transaction, the OID applicable Consolidated First Lien Leverage Ratio immediately prior to the refinanced loans shall be taken into accountsuch Acquisition, Investment or similar transaction (this clause (B), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield DifferentialRatio Debt Amount” and, together with the Incremental Base Amount, the “Incremental Limit”); provided that
(i) Incremental Term Loans may be Incurred without regard to the Incremental Limit, thenwithout regard to whether an Event of Default has occurred and is continuing and without regard to the minimums set forth in the first part of this Section 2.20(b), upon to the effectiveness extent that the Net Cash Proceeds from such Incremental Term Loans on the date of Incurrence of such Incremental Amendment, Term Loans (or substantially concurrently therewith) are used to either (x) prepay Term Loans and related amounts in accordance with the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as procedures set forth in Section 2.19(a)2.11(b) and/or (y) permanently reduce the Revolving Commitments, Extended Revolving Commitments or Incremental Revolving Commitments (and, if applicable, repay or reduce any related revolving exposure thereunder) in accordance with the procedures set forth in Section 2.11(g)(ii) (and any such Incremental Term Loans shall be treated substantially the same as the Loansdeemed to have been Incurred pursuant to this proviso), including with respect to mandatory and voluntary prepayments and
(unless the applicable ii) Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower Revolving Commitments may be provided without regard to the Administrative Agent pursuant Incremental Limit, without regard to Section 2.19(a) shall whether an Event of Default has occurred and is continuing and without regard to the minimums set forth in the requested amount and proposed terms first part of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and2.20(b), to the extent not permitted that the existing Revolving Commitments, Extended Revolving Commitments or other Incremental Revolving Commitments, as applicable, shall be permanently reduced (and, if applicable, any related revolving exposure repaid or reduced) in this accordance with Section 2.19, all terms and documentation with respect to any Incremental Loan which (i2.11(g)(ii) are materially more restrictive on the Group Members, taken as a whole, than those with respect by an amount equal to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect aggregate amount of Incremental Loans shall become Revolving Commitments under this Agreement pursuant to an amendment so provided (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or Revolving Commitments shall be deemed to have been Incurred pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier datethis proviso).
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more additional tranches of Loans term loans or, if reasonably satisfactory to the Administrative Agent, an increase of an existing tranche (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”), and or (ii) one or more increases in the amount of the Revolving Commitments (each such increase, a Lender making such loans, an “Incremental LenderRevolving Commitment Increase”); it being understood provided that upon the effectiveness of any Incremental Amendment No. 1 referred to below and Amendment No. 2 each constituteconstituted an “at the time any Incremental Amendment” with respect Term Loan is made (after giving effect thereto), (x) no Default has occurred and is continuing, and (y) the Administrative Agent shall have received from the Borrower a Compliance Certificate demonstrating a Consolidated Leverage Ratio of no more than 3.0 to the establishment of the Term B-2 Commitments as “Incremental Commitments” 1.0 both immediately before and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental LoansTerm Loan and/or Revolving Commitment Increase on a Pro Forma Basis for the most recently completed Measurement Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) and the Compliance Certificate has been delivered pursuant to Section 5.01(c). Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 and integral multiples of $5,000,000 in excess thereof. Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed an amount equal to the sum of $150,000,000. The Incremental Term Loans (xi) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Loans and Commitments hereunder;
the Term A Loans made on the Closing Date, (iiiii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) Date with respect to the Incremental Term A Loans shall have a Weighted Average Life to Maturity no shorter than made on the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses Closing Date and (iii) shall be treated substantially the same as the Term A Loans made on the Closing Date (in each case, including with respect to mandatory and voluntary prepayments), provided that (x) the terms and conditions applicable to Incremental Term Loans shall be identical to those applicable to those of the Term A Loans set forth herein (other than interest rates and amortization schedule) and (ivy) above, the interest rates and the amortization schedule applicable to any such the Incremental Term Loans shall be determined by the Borrower and the applicable Lenders thereof; provided that the Incremental Lenders;
(vi) no Default or Event Term Loans shall not have a Weighted Average Life to Maturity shorter than that of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist the Term A Loans made on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental except by virtue of amortization or prepayment of such Term Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject prior to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount time of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”incurrence), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.22 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional Lender (provided it being understood that no existing Term Lender shall be obligated will have an obligation to make a portion of any Incremental Loan) Term Loan and no existing Revolving Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all 2.22 and otherwise on terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory 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 consented, and in the case of each Revolving Commitment Increase, the Issuing Bank and the Swingline Lender (such consent consents 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 such consent would be required under Section 10.6(b9.04(b) for an assignment of Term Loans or Revolving 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 Lender, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the 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 LendersLenders 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 Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebySection. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof of each of the condition conditions set forth in clause Section 4.02 (dit 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) below and such other conditions as the parties thereto shall agree agree.
(the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). b) The Borrower will shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. Upon each increase in the Revolving Commitments pursuant to this Section 2.22, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “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 Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans and Alternate Currency Participations such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit, (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender), and (C) Alternate Currency Participations will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Commitment and (ii) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.16. 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.
(dc) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.22 shall supersede any provisions in Sections 2.12 Section 2.18 or 10.1 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower a)Parent may, at any time or from time to time after the Closing Date, by notice from the Company Borrower 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 Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b) one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), as (i) no Event of Default shall exist; provided that, with respect to any Incremental Term Loans the case may beproceeds 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 receipt thereof, have been the absence of an Event of Default (other than a Specified Event of Default with respect to any Borrower) shall not constitute a condition to the issuance or were required to incurrence of such Incremental Term 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 does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) 6.01 or Section 6.1(b)(vi)(II)(c)); provided that6.01(b) (which, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and calculated after giving effect to any Incremental Loans made thereunder); and
(vii) with respect acquisition consummated concurrently therewith or to any Incremental Amendment, if be consummated using the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness proceeds of such Incremental AmendmentTerm Loans or Revolving Commitment Increase, the Applicable Margin then as applicable, and calculated assuming any Revolving Commitment Increase is fully drawn). Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in effect for Loans shall automatically be increased by the Incremental Yield Differential; an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as limit set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”next sentence). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary aggregate amount of the Incremental Term Loans and the Borrower and Revolving Commitment Increases (other than, for the Administrative Agent may amend avoidance of doubt, those established in respect of Extended Term Loans or Extension Revolving Credit Commitments pursuant to Section 2.12 to implement any 2.16) shall not exceed the Maximum Incremental AmendmentFacilities Amount.
Appears in 1 contract
Sources: Credit Agreement (Uniti Group Inc.)
Incremental Credit Extensions. (a) The Any Borrower may, or other Loan Party organized in the United States or the Netherlands may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”), provided that both at the time of any such request and a Lender making upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time that any such loans, an “Incremental Lender”); it being understood that Amendment No. 1 Term Loan is made (and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to thereto) no Default or Event of Default shall exist (provided that, any such request or Incremental LoansAmendment made in connection with a Permitted Acquisition or other Investment permitted under Section 7.02 shall require only that no Event of Default under Section 8.01(a), (f) or (g) shall exist at such time). Each tranche 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). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided thatother than, for the avoidance of doubt, the amount available to the Borrower those established in respect of Extended Term Loans pursuant to this clause (z) (ASection 2.16) shall not be reduced by exceed at the time of issuance or incurrence, the Maximum Incremental Facilities Amount on a Pro Forma Basis. The Incremental Term B-1 Loans or the Term B-2 Loans and (Bi) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu or junior in right of payment and of security with the other Loans and Commitments hereunder;
Term Loans; (iiiii) the Incremental Loans shall not mature earlier than the Maturity Date;
; (iviii) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to except as set forth in clauses (iiii) and (ii) above, shall be treated substantially the same as the Dollar Term B-5 Loans or Euro Term B-3 Loans, as applicable (in each case, including with respect to mandatory and voluntary prepayments) and (iv) above, the interest rates and Applicable Rate for the amortization schedule applicable to any such Incremental Term Loans shall be determined by the Borrower ▇▇▇▇▇▇▇ and the applicable Incremental new Lenders;
; provided, however that (viA) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the interest rate margins for the Incremental Facility Term Loans incurred within twelve (12) months of the Closing Date shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to any Dollar Term B-5 Loans (or Euro Term B-3 Loans if such Incremental Amendment entered into Term Loans are denominated in connection therewith Euros) plus 50 basis points (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject margins applicable to the first proviso in this clause Dollar Term B-5 Loans or Euro Term B-3 Loans, as applicable, shall be increased to the extent necessary to achieve the foregoing) and (vii)), with such increased amount being equated to interest margin B) solely for purposes of determining any increase to the Applicable Margin under foregoing clause (A), the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject applicable to the first proviso in this clause (vii))), any Term Loans or Incremental Term Loans shall be deemed to include all upfront or similar fees or original issue discount (equated payable generally to interest Lenders providing such Term Loans or such Incremental Term Loans based on an assumed four-year life to maturity ormaturity, if shorterprovided that (1) except as provided herein, the remaining life to maturity thereof) terms and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID conditions applicable to Incremental Term Loans may be materially different from those of the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Term Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower differences are reasonably acceptable to the Administrative Agent and (2) the amortization schedule applicable to the Incremental Term Loans shall be determined by ▇▇▇▇▇▇▇ and the lenders thereof. Each notice pursuant to this Section 2.19(a) 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) . Incremental 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 Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative AgentLender”); provided that the Administrative Agent 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 if such consent would be required under Section 10.6(b10.07(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by ▇▇▇▇▇▇▇ (and, in the Borrowercase of an Incremental Term Loan, any other relevant Borrowers, as applicable), 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 Borrowers, Agents or 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 Borrowerapplicable Borrowers, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.14. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof of each of the condition conditions set forth in clause Section 4.02(E) (dit being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02(E) below shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees.
(db) Each This Agreement may be amended with the written consent of the representations Administrative Agent, the Borrowers and warranties made by the Lenders providing the Replacement Term Loan Facilities (as defined below) to permit the refinancing of any Class or tranche of Term Loans (“Refinanced Term Loan Party Facilities”) with one or more replacement term loan facilities (“Replacement Term Loan Facilities”) hereunder, and the aggregate principal amount of any Replacement Term Loan Facility may, at ▇▇▇▇▇▇▇’▇ election, be greater than or less than the aggregate principal amount of the Refinanced Term Loan Facility so long as (x) the aggregate principal amount of such Replacement Term Loan Facility in excess of (y) the aggregate principal amount of the Refinanced Term Loan Facility, plus other amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing and replacement, does not exceed the Maximum Incremental Facilities Amount; provided that (a)(i) solely with respect to any Replacement Term Loan Facility in an aggregate principal amount exceeding the aggregate principal amount of the applicable Refinanced Term Loan Facility, plus other amounts paid, and fees and expenses reasonably incurred, in connection with the applicable refinancing and replacement, interest rate margins for the Loans under such Replacement Term Loan Facility incurred within twelve (12) months of the Closing Date shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to Dollar Term B-5 Loans (or pursuant Euro Term B-3 Loans if Loans under such Replacement Term Loan Facility are denominated in Euros) plus 50 basis points (and the interest rate margins applicable to the Loan Documents Dollar Term B-5 Loans or Euro Term B-3 Loans, as applicable, shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except increased to the extent necessary to achieve the foregoing) and (ii) solely for purposes of the foregoing clause (i), the interest rate margins applicable to any Term Loans or Loans under any Replacement Term Loan Facility shall be deemed to include all upfront or similar fees or original issue discount payable generally to Lenders providing such representations Term Loans or Loans under such Replacement Term Loan Facility on an assumed four (4)-year life to maturity, (b) each Replacement Term Loan Facility has a final maturity date not earlier than the final maturity date of, and warranties expressly relate has a Weighted Average Life to an earlier dateMaturity not less than the Weighted Average Life to Maturity of, in which case the Refinanced Term Loan Facility at the time of such representations refinancing and warranties (c) the Administrative Agent shall have been true and correct in all material respects consented (except where such representations and warranties are already qualified by materiality, in which case consent not to be unreasonably withheld) to such representation and warranty shall Lender’s providing the Replacement Term Loan Facilities if such consent would be accurate in all respectsrequired under Section 10.07(b) as for an assignment of Loans to such earlier dateLender.
(ec) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
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Incremental Credit Extensions. (a) The Borrower ▇▇▇▇▇▇▇ may (and TNC or NHF may, in the case of clause (b)) at any time or from time to time after the Closing Pushdown Date, by notice from the Company Borrower 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 Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (b) one or more increases in the amount of the Revolving Credit Commitments of any Facility or the addition of a new Revolving Credit Facility to be provided to the Canadian Borrower (each such increase or new Revolving Credit Facility, and a Lender making such loans, an “Incremental LenderRevolving Commitment Increase”); it being understood , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment No. 1 referred to below, no Default or Event of Default shall 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 (provided that, any such request or Incremental Amendment No. 2 each constituteconstituted an “Incremental Amendment” made in connection with a Permitted Acquisition or other Investment permitted under Section 7.02 shall require only that no Event of Default under Section 8.01(a), (f) or (g) shall exist at such time) and (ii) unless otherwise waived by the Required Class Lenders with respect to the establishment Tranche A Revolving Credit Facility and Class A Term Loans, ▇▇▇▇▇▇▇ shall be in compliance with the covenant set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term B-2 Commitments as “Incremental Commitments” Loan or Revolving Commitment Increase and the Term B-2 Loans last day of the most recently ended Test Period, in each case, as “Incremental Loans”; provided that:
(i) after giving effect to any if such Incremental LoansTerm Loans or Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarter of ▇▇▇▇▇▇▇ for testing compliance therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase 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). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Term Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus Revolving Commitment Increases (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided thatother than, for the avoidance of doubt, the amount available to the Borrower those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to this clause (z) (ASection 2.16) shall not be reduced by exceed at the time of issuance or incurrence, the Maximum Incremental Facilities Amount on a Pro Forma Basis. The Incremental Term B-1 Loans or the Term B-2 Loans and (Ba) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu or junior in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans, (iiib) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) Date with respect to the Class B-4 Term Loans; provided, however, that Incremental Term Loans shall may have a Weighted Average Life to Maturity no shorter an earlier maturity than the Weighted Average Life to Maturity Date of the Class B-4 Term Loans;
, solely if such Incremental Term Loans are in the form of additional Class A Term Loans, (vc) subject except as set forth above, shall be treated substantially the same as the Class A Term Loans, Class B-2 Euro Term Loans or Class B-4 Term Loans, as applicable (in each case, including with respect to clauses (iiimandatory and voluntary prepayments) and (ivd) above, the interest rates and Applicable Rate for the amortization schedule applicable to any such Incremental Term Loans shall be determined by the Borrower ▇▇▇▇▇▇▇ and the applicable new Lenders; provided, however, that (i) the interest rate margins for the Incremental Lenders;
Term Loans (vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)other than Class A Term Loans) shall exist on not be greater than the Incremental Facility Closing Date highest interest rate margins that may, under any circumstances, be payable with respect to any Dollar Term Loans (other than Class A Term Loans) (or Class B-2 Euro Term Loans if such Incremental Amendment entered into Term Loans are denominated in connection therewith Euros) plus 50 basis points (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject margins applicable to the first proviso in this clause Dollar Term Loans (vii))other than Class A Term Loans) or Class B-2 Euro Term Loans, with such as applicable, shall be increased amount being equated to interest margin the extent necessary to achieve the foregoing) and (ii) solely for purposes of determining any increase to the Applicable Margin under foregoing clause (i), the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject applicable to the first proviso in this clause (vii))), any Term Loans or Incremental Term Loans shall be deemed to include all upfront or similar fees or original issue discount (equated payable generally to interest Lenders providing such Term Loans or such Incremental Term Loans based on an assumed four-year life to maturity ormaturity), if shorterprovided that (i) except as provided herein, the remaining life terms and conditions applicable to maturity thereofIncremental Term Loans may be materially different from those of the Term Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) and upfront fees (which the amortization schedule applicable to the Incremental Term Loans shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included determined by ▇▇▇▇▇▇▇ and equated to the interest rate) lenders thereof. Other than with respect to the existing Loansinterest rates and related terms with respect to Loans denominated in Canadian Dollars, after giving effect and other than with respect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing trancheborrowing mechanics and operational matters, the OID applicable terms of any new Revolving Credit Facility to be provided to the refinanced loans Canadian Borrower shall be taken into account), by more than 50 basis points (identical to those of the amount of Revolving Credit Facilities and any collateral securing such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors new facility shall be equated shared with the Secured Parties pursuant to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, customary arrangements and in such case the interest rate floor customary limitations (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guaranteesadverse tax consequences). Each notice from the Company Borrower to the Administrative Agent ▇▇▇▇▇▇▇, TNC or NHF pursuant to this Section 2.19(a) 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, 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 Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 andLender”), to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent 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 such consent would be required under Section 10.6(b10.07(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 (other than a Revolving Commitment Increase to be provided to the Canadian Borrower), 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, executed by ▇▇▇▇▇▇▇ (and, in the case of a Revolving Commitment Increase, any other relevant Borrowers or the Canadian Borrower, as applicable), 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 Borrowers, Agents or 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 Borrowers (or the Canadian Borrower, as applicable), to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.14. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof of each of the condition conditions set forth in clause Section 4.02 (dit 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) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower Borrowers (or the Canadian Borrower, as applicable) will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) if the increase relates to the Tranche A Revolving Credit Facility, each Tranche A 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 Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Tranche A Revolving Credit Facility only), a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Tranche A Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Tranche A Revolving Credit Commitments of all Tranche A Revolving Credit Lenders represented by such Revolving Credit Lender’s Tranche A Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the 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.
(db) Each This Agreement may be amended with the written consent of the representations Administrative Agent, the Borrowers and warranties made by the Lenders providing the applicable Replacement Facilities (as defined below) to permit (i) the replacement of any Class or tranche of Revolving Credit Facilities and the refinancing of any Loans or other extensions of credit outstanding thereunder (“Refinanced Revolving Credit Facilities”) with one or more replacement revolving credit facilities (each, a “Replacement Revolving Credit Facility”) and (ii) the refinancing of any Class or tranche of Term Loans (“Refinanced Term Loan Party Facilities” and, together with any Refinanced Revolving Credit Facilities, the “Refinanced Facilities”) with one or more replacement term loan facilities (“Replacement Term Loan Facilities” and, together with any Replacement Revolving Credit Facilities, the “Replacement Facilities”) hereunder, and the aggregate principal amount of any Replacement Facility may, at ▇▇▇▇▇▇▇’▇ election, be greater than or less than the aggregate principal amount of the applicable Refinanced Facility so long as (x) the aggregate principal amount of such Replacement Facility in excess of (y) the aggregate principal amount of the applicable Refinanced Facility, plus other amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing and replacement, does not exceed the Maximum Incremental Facilities Amount; provided that (a) (i) solely with respect to any Replacement Term Loan Facility (other than any Replacement Term Loan Facility consisting of Class A Term Loans) in an aggregate principal amount exceeding the aggregate principal amount of the applicable Refinanced Term Loan Facility, plus other amounts paid, and fees and expenses reasonably incurred, in connection with the applicable refinancing and replacement, interest rate margins for the Loans under such Replacement Term Loan Facility shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to Dollar Term Loans (other than Class A Term Loans) (or pursuant Class B-2 Euro Term Loans if Loans under such Replacement Term Loan Facility are denominated in Euros) plus 50 basis points (and the interest rate margins applicable to the Loan Documents Dollar Term Loans (other than Class A Term Loans) or Class B-2 Euro Term Loans, as applicable, shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except increased to the extent necessary to achieve the foregoing) and (ii) solely for purposes of the foregoing clause (i), the interest rate margins applicable to any Term Loans or Loans under any Replacement Term Loan Facility shall be deemed to include all upfront or similar fees or original issue discount payable generally to Lenders providing such representations Term Loans or Loans under such Replacement Term Loan Facility on an assumed four-year life to maturity, (b) each Replacement Facility has a final maturity date not earlier than the final maturity date of, and warranties expressly relate has a Weighted Average Life to an earlier dateMaturity not less than the Weighted Average Life to Maturity of, in which case the applicable Refinanced Facility at the time of such representations refinancing and warranties (c) the Administrative Agent shall have been true and correct in all material respects consented (except where not to be unreasonably withheld) to such representations and warranties are already qualified by materialityLender’s providing the applicable Replacement Facilities if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, in which case as applicable, to such representation and warranty shall be accurate in all respects) as of such earlier dateLender.
(ec) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
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Incremental Credit Extensions. (ai) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower 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 Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (B) one or more increases in the amount of the Revolving Credit Commitments (each such increase, and a Lender making such loans, an “Incremental LenderRevolving Commitment Increase”); , provided that (1) 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 and at the time that any such Incremental Term Loan is made or any Revolving Commitment Increase is established (and after giving effect thereto) no Default or Event of Default shall exist, (2) 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 Amendment No. 1 and Amendment No. 2 each constituteconstituted an “if the applicable Incremental Amendment” with respect Facility Closing Date is to occur prior to the establishment date the June 30, 2013 Test Period has become effective, the levels set forth in Section 7.11 for the June 30, 2013 Test Period shall be deemed to apply), as determined on a Pro Forma Basis and (3) the Senior Secured Leverage Ratio for the Borrower would be not greater than 3.25:1 as determined on a Pro Forma Basis.
(ii) Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000, in the case of Incremental Term B-2 Commitments as “Incremental Commitments” Loans, and $10,000,000, in the Term B-2 Loans as “Incremental Loans”; case of a Revolving Commitment Increase (provided that:
(i) after giving effect , in each case, such amount may be less than the applicable amount specified if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to any such Incremental Loansthe contrary herein, the aggregate amount of the Incremental Term Loans and Revolving Commitment Increases established pursuant to this Section 2.14(a) shall not exceed an amount equal to the sum of $150,000,000.
(xiii) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis The Incremental Term Loans (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental LoansA) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is shall be secured by the Collateral on a pari passu basis with with, or a junior basis to, the Obligations prior Revolving Credit Loans and the Term Loans; provided that any Incremental Term Loans so secured on a junior basis shall be subject to such timethe Second Lien Intercreditor Agreement, plus (zB) $285,000,000 shall be either Incremental Tranche B Term Loans or Incremental Tranche C Term Loans, (lessC) shall not mature, in the case of this clause (z)Incremental Tranche B Term Loans, the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Latest Term Loan B Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such the case of Incremental Tranche C Term Loans, earlier than the interest rate floor Latest Term Loan C Maturity Date, and (but not the Applicable MarginD) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except except as set forth in Section 2.19(a)above, the Incremental Loans shall be treated substantially the same as the LoansTerm Loans (in each case, including with respect to mandatory and voluntary prepayments (unless except to the extent that the Incremental Term Lenders with respect to such Incremental Term Loans agree to less favorable treatment with respect thereto and except for any Incremental Term Loans secured on a junior basis)); provided that (1) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (2) the interest rates applicable to the Incremental Term Loans shall be determined by the Borrower and the lenders thereof; provided further that if the Effective Yield relating to (x) any Incremental Tranche B Term Loans exceeds the Effective Yield relating to any Term Loan B Facility immediately prior to the effectiveness of the applicable Incremental Lenders agree Amendment by more than 0.50% per annum or (y) any Incremental Tranche C Term Loans exceeds the Effective Yield relating to a less any Term Loan C Facility immediately prior to the effectiveness of the applicable Incremental Amendment by more than pro rata share 0.50% per annum, then, in each case, the Applicable Rate relating to such Class of Term Loans shall be adjusted to be equal to the Effective Yield relating to such prepaymentsIncremental Tranche B Term Loans or Incremental Tranche C Term Loans, as the case may be, minus 0.50% per annum.
(iv) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (and each existing Term Lender (provided that no Lender shall be obligated will have the right, but not an obligation, to make a portion of any Incremental Term Loan) , and each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Revolving Commitment Increase, in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all 2.14 and otherwise on terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory acceptable to the Administrative Agent; ) or 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 and, 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, conditioned or delayed) 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 10.6(b10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. .
(v) 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, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebySection. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition conditions set forth in clause Section 4.02 (dit 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) below (provided that if the proceeds of such Incremental Term Loans or the loans made pursuant to such Revolving Commitment Increase are being used to finance a Permitted Acquisition or other acquisition permitted hereunder, (A) Section 4.02(a) shall be deemed to refer only to the Specified Representations, and the reference to “Material Adverse Effect” shall be understood to refer to “Material Adverse Effect” (or such similar term) as defined in the main transaction agreement governing such Permitted Acquisition or other acquisition and (B) Section 4.02(b) shall be deemed to refer only to an Event of Default under Section 8.01(a) or (f)) and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees.
(dvi) Each Upon each increase in the Revolving Credit Commitments pursuant to this Section, each 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 representations Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and warranties each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Loan Party Lender in or 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 Loan Documents immediately preceding sentence.
(b) The Borrower may at any time or from time to time 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 one or more increases in the amount of the Revolving Credit Commitments (each such increase, a “Specified Revolving Commitment Increase”) in an aggregate amount of up to $25,000,000 (which, for the avoidance of doubt, shall be true in addition to, and correct in all material respects shall not reduce, the aggregate amount of Revolving Commitment Increases and Incremental Term Loans that may be established pursuant to Section 2.14(a) above); provided that both at the time of any such request and upon the effectiveness of any Incremental Amendment with respect to a Specified Revolving Commitment Increase, no Default or Event of Default shall exist and at the time that any such Specified Revolving Commitment Increase is established (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty after giving effect thereto) no Default or Event of Default shall exist. Each Specified Revolving Commitment Increase shall be accurate in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all respectsremaining availability under the limit set forth above). The provisions of paragraphs (iv), (v) on and as (vi) of the Incremental Facility Closing Date as if made on and as of such dateSection 2.14(a) shall, except to the extent such representations and warranties expressly relate relating to an earlier dateRevolving Commitment Increases, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materialityapply equally to this Section 2.14(b), in which case such representation and warranty shall be accurate in all respects) as of such earlier datemutatis mutandis.
(ec) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
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Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases to the then-existing Term Loans or one or more additional tranches Classes of Loans Term Loans, in each case, which shall be denominated in Dollars (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long except as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured otherwise agreed by the Collateral on a pari passu basis lenders providing the relevant Incremental Term Loans in connection with the Obligations prior to such time, plus any Limited Condition Acquisition (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) which shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (xSection 2.15(b); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(ashall have occurred at the time of the incurrence of such Incremental Term Loans and be continuing or result therefrom, (ii) or 8.1(f)) no Lender shall exist on the Incremental Facility Closing Date with respect be obligated to provide any Incremental Term Loans as a result of any such request by the Borrower, and until such time, if any, as such ▇▇▇▇▇▇ has agreed in writing in its sole discretion to provide an Incremental Term Loan and executed and delivered to the Administrative Agent an Incremental Amendment entered into as provided below in connection therewith this Section 2.15, such Lender shall not be obligated to fund any Incremental Term Loans, (iii) each increase in then-existing Term Loans or additional Class of Incremental Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 and a whole multiple of $1,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence or the Administrative and the Required Lenders otherwise consent), (iv) the Borrower shall have delivered to the Administrative Agent and each Lender a certificate executed by an Authorized Officer of the Borrower, certifying, to the best of such officer’s knowledge, (x) compliance with the requirements of preceding clause (i), the provisos of the second succeeding sentence, and of Section 6 to the extent required by the next succeeding paragraph, and (y) the “Maximum Incremental Facilities Amount” at the time of incurrence (together with calculations thereof in reasonable detail), and (v) on a Pro Forma Basis, after giving effect to the incurrence of such Incremental Term Loans and application of proceeds thereof, (A)(1) in the case of Incremental Term Loans secured on an equal and ratable basis with the Obligations, the Secured Net Leverage Ratio for the Calculation Period most recently ended does not exceed 1.75:1.00, (2) in the case of Incremental Term Loans secured on a junior basis to the Obligations, the Secured Net Leverage Ratio for the Calculation Period most recently ended does not exceed 1.75:1.00, or (3) in the case of Incremental Term Loans that are unsecured or that are Subordinated Indebtedness, the Total Net Leverage Ratio for the Calculation Period most recently ended is not less than 1.75:1.00, and (B) the Borrower shall be in compliance with the financial covenants set forth in Sections 9.10 and 9.11 as of the most recent Calculation Period. Notwithstanding anything to the contrary herein, in no event shall the aggregate amount of the Incremental Term Loans incurred at any time exceed the Maximum Incremental Facilities Amount as of such time. The Incremental Term Loans made thereunder); and
shall be, except as provided in immediately succeeding clause (viiii) below, secured by the Security Documents, and guaranteed under the Guaranty, on an equal and ratable basis with all other Obligations secured by the Security Documents and guaranteed under the Guaranty and shall be treated substantially the same as the existing Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided, however, that (i) the interest rate applicable to a Class of Incremental Term Loans may differ from that applicable to the Initial Term Loans or any other Class of Incremental AmendmentTerm Loans, provided, however, if the all-in-yield “effective yield” applicable to a given Class of Incremental Term Loans that is secured on an equal and ratable basis with the Obligations (whether in the form which, for such purposes only, shall be deemed to take account of any then applicable interest rate marginsmargin, original issue discountinterest rate benchmark floors, recurring fees and all upfront or similar fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated amortized over the shorter of (x) the life of such loans and (y) four years) payable to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount all Lenders providing such Class of original issue discount), Incremental Term Loans but excluding exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Class of Incremental LoanTerm Loans) determined as of the initial funding date for such Class of Incremental Term Loans exceeds the “effective yield” of any Initial Term Loans or any other Class of Incremental Term Loans (unless the terms of such Class provide that such Class is not subject to this provision) (determined on the same basis as provided above, which shall not with the comparative determination to be included and equated to made in the interest ratereasonable judgment of the Administrative Agent (as determined by the Administrative Agent in consultation with the Required Lenders) consistent with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), generally accepted financial practice) by more than 50 basis points 0.50% (the amount of such excess above 50 basis points over 0.50% being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such Initial Term Loans or such other Class of Incremental Term Loans subject to a Yield Differential shall automatically be increased by the Yield Differential (including, as provided in the following proviso, the “floor” for any applicable Term Loans effective upon the making of the applicable Incremental Yield DifferentialTerm Loans; providedprovided that, that in determining the interest rate margins applicable to the Incremental Term Loans and the Initial Term Loans or such other Class of Incremental Term Loans (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans or any other Class of Incremental Term Loans in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity) and (y) if the Incremental Term Loans include an interest-rate floor a “floor” greater than the interest rate floor “floor” applicable to the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans, the differential between (I) such interest rate floors increased amount shall be equated to the interest rate margins margin for purposes of determining whether an increase to the Applicable Margin applicable interest margin under the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans shall be required, but only required and (II) to the extent an increase in the interest rate floor applicable to “floor” in the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor then in effect thereunder, the “floor” (but not the Applicable Margininterest rate margin) applicable to the Initial Term Loans or any other then-existing Class of Incremental Term Loans shall be increased by such increased amount (this clause (i), the “MFN Provision”), (ii) a given Class of Incremental Term Loans may rank junior in right of security with other Term Loans or be unsecured, in which case such Incremental Term Loans will be extended pursuant to a separate credit agreement and the provisions of immediately preceding clause (i) shall not apply; (iii) the final stated maturity date for a given Class of Incremental Term Loans may be on or later (but not sooner) than, the Initial Maturity Date, (iv) the amortization requirements for a given Class of Incremental Term Loans may differ, so long as the Weighted Average Life to Maturity of such Incremental Term Loans is no shorter than the remaining Weighted Average Life to Maturity applicable to the then outstanding Loans (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the applicable Loans), (v) if such differential between interest rate floorsIncremental Term Loans are secured, they shall not be secured by any assets other than the Collateral, (vi) if such Incremental Term Loans are guaranteed, they shall not be guaranteed by any Person other than the Guarantors, (vii) except as otherwise required or as permitted in clauses (i) through (vi) above, the other terms of a given Class of Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders and/or Additional Lenders providing such Incremental Term Loans and shall, at all times prior to the Latest Maturity Date then in effect at the time of such incurrence, be substantially consistent with the terms of the Term Loans; provided that such terms may differ if reasonably satisfactory to the Administrative Agent and the Required Lenders; provided, further, that any Incremental Facility such terms that constitutes fixedare not substantially consistent with the then-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental existing Loans shall be no more favorable (taken as a whole) to the relevant Lenders under such Incremental Term Loans than those applicable to the then-existing Loans (taken as a whole) and (viii) the proceeds of Incremental Term Loans may be utilized by Holdings, the Borrower or any of their respective Subsidiaries as may be agreed by the Borrower and the Lenders providing the Incremental Term Loans, to the extent not otherwise prohibited by this Agreement. Notwithstanding the foregoing, Incremental Term Loans may have identical terms to any of the Term Loans and be treated substantially as the same Class as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share any of such prepayments) and GuaranteesTerm Loans. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) . Incremental Term Loans may be made by any existing Lender (or any Additional existing Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateAffiliate) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agentother financial institution being called an “Additional Lender”); provided that the Administrative Agent and the Required Lenders shall have consented to such Additional Lender (such consent not to be unreasonably withheld, conditioned withheld or delayed) and such Additional Lender shall not be an Affiliated Lender (other than Affiliated Sponsor Lenders in accordance with the requirements of, and subject to the limitations contained in, Sections 2.16(a)(vii) and (d)). Each Non-Defaulting Lender shall be afforded a right of first offer with respect to such Lender’s making pro rata portion of such Incremental Term Loans if on the terms and subject to the conditions offered by the Borrower to any other prospective lenders; provided that any existing Non-Defaulting Lender that does not deliver to the Borrower a written commitment to provide its pro rata share of such consent would Incremental Term Loans on such terms and subject to such conditions within ten (10) Business Days after receipt by such Non-Defaulting Lender of written notice thereof may be required under Section 10.6(b) for an assignment deemed by the Borrower, in its sole discretion, to have declined to provide its pro rata share of such Incremental Term Loans (in which case, the Borrower shall be deemed to have complied with its obligation to afford a right of first offer to such Non-Defaulting Lender and may offer the opportunity to provide such Incremental Term Loans to such Lender or Additional any other Person (including any other existing Lender)). Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent, and, to the extent reasonably requested by the Administrative Agent or Required Lenders, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 5. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents (including, without limitation, any Mortgage modifications and related date-down endorsements to the Mortgage Policies) as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Agent, the Required Lenders and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.15. The effectiveness occurrence of the effective date of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on such date of each of the condition conditions set forth in clause Section 6 (dit being understood that all references to “the Borrowing Date” or similar language in such Section 6 shall be deemed to refer to the effective date of such Incremental Amendment) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents No Lender shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except obligated to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement provide any Incremental AmendmentTerm Loans, unless it so agrees.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower N▇▇▇▇▇▇ may (and TNC or NHF may, in the case of clause (b)) at any time or from time to time after the Closing Pushdown Date, by notice from the Company Borrower 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 Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (b) one or more increases in the amount of the Revolving Credit Commitments of any Facility or the addition of a new Revolving Credit Facility to be provided to the Canadian Borrower (each such increase or new Revolving Credit Facility, and a Lender making such loans, an “Incremental LenderRevolving Commitment Increase”); it being understood , provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment No. 1 referred to below, no Default or Event of Default shall 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 (provided that, any such request or Incremental Amendment No. 2 each constituteconstituted an “Incremental Amendment” made in connection with a Permitted Acquisition or other Investment permitted under Section 7.02 shall require only that no Event of Default under Section 8.01(a), (f) or (g) shall exist at such time) and (ii) unless otherwise waived by the Required Class Lenders with respect to the establishment Tranche A Revolving Credit Facility and Class A Term Loans, N▇▇▇▇▇▇ shall be in compliance with the covenant set forth in Section 7.11 determined on a Pro Forma Basis as of the date of such Incremental Term B-2 Commitments as “Incremental Commitments” Loan or Revolving Commitment Increase and the Term B-2 Loans last day of the most recently ended Test Period, in each case, as “Incremental Loans”; provided that:
(i) after giving effect to any if such Incremental LoansTerm Loans or Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarter of N▇▇▇▇▇▇ for testing compliance therewith. Each tranche of Incremental Term Loans and each Revolving Commitment Increase 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). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Term Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus Revolving Commitment Increases (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided thatother than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed at the time of issuance or incurrence, when taken together with the aggregate principal amount available to the Borrower of Incremental Term Loans and Revolving Commitment Increases incurred pursuant to this clause Section 2.14(a) and the aggregate principal amount of Indebtedness pursuant to a Permitted Debt Offering issued or incurred pursuant to Section 7.03(v)(ii), in each case, following the Fourth A&R Effective Date and prior to such date, the Maximum Incremental Facilities Amount at such time (z) (A) shall not provided that Incremental Term Loans may be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject incurred without regard to the ratio test described in foregoing clause (x); provided, further, Maximum Incremental Facilities Amount to the extent that the Borrower may incur Net Proceeds from such Indebtedness under any clause Incremental Term Loans are used on the date of incurrence thereof (xor substantially concurrently therewith) to prepay Term Loans in accordance with Section 2.05), . The Incremental Term Loans (ya) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu or junior in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans, (iiib) the Incremental Loans shall not mature earlier than the Maturity Date;
Date with respect to the Class B-2 Term Loans, (ivc) except as set forth above, shall be treated substantially the Incremental same as the Term Loans shall have a Weighted Average Life (in each case, including with respect to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iiimandatory and voluntary prepayments) and (ivd) above, the interest rates and Applicable Rate for the amortization schedule applicable to any such Incremental Term Loans shall be determined by the Borrower N▇▇▇▇▇▇ and the applicable Incremental new Lenders;
; provided, however, that (vii) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the interest rate margins for the Incremental Facility Closing Date Term Loans shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to any Dollar Term Loans (or Class B-2 Euro Term Loans if such Incremental Amendment entered into Term Loans are denominated in connection therewith Euros) plus 50 basis points (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject margins applicable to the first proviso in this clause Dollar Term Loans or Class B-2 Euro Term Loans, as applicable, shall be increased to the extent necessary to achieve the foregoing) and (vii)), with such increased amount being equated to interest margin ii) solely for purposes of determining any increase to the Applicable Margin under foregoing clause (i), the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject applicable to the first proviso in this clause (vii))), any Term Loans or Incremental Term Loans shall be deemed to include all upfront or similar fees or original issue discount (equated payable generally to interest Lenders providing such Term Loans or such Incremental Term Loans based on an assumed four-year life to maturity ormaturity), if shorterprovided that (i) except as provided herein, the remaining life terms and conditions applicable to maturity thereofIncremental Term Loans may be materially different from those of the Term Loans to the extent such differences are reasonably acceptable to the Arrangers and (ii) and upfront fees (which the amortization schedule applicable to the Incremental Term Loans shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included determined by N▇▇▇▇▇▇ and equated to the interest rate) lenders thereof. Other than with respect to the existing Loansinterest rates and related terms with respect to Loans denominated in Canadian Dollars, after giving effect and other than with respect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing trancheborrowing mechanics and operational matters, the OID applicable terms of any new Revolving Credit Facility to be provided to the refinanced loans Canadian Borrower shall be taken into account), by more than 50 basis points (identical to those of the amount of Revolving Credit Facilities and any collateral securing such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors new facility shall be equated shared with the Secured Parties pursuant to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, customary arrangements and in such case the interest rate floor customary limitations (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guaranteesadverse tax consequences). Each notice from the Company Borrower to the Administrative Agent N▇▇▇▇▇▇, TNC or NHF pursuant to this Section 2.19(a) 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (and each existing Term Lender (provided that no Lender shall be obligated will have the right, but not an obligation, to make a portion of any Incremental Term Loan) , and each existing Revolving Credit Lender of the applicable Facility will have the right to provide a portion of any Revolving Commitment Increase, in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all 2.14 and otherwise on terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory acceptable to the Administrative Agent; ) or 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 (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 such consent would be required under Section 10.6(b10.07(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 (other than a Revolving Commitment Increase to be provided to the Canadian Borrower), 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, executed by N▇▇▇▇▇▇ (and, in the case of a Revolving Commitment Increase, any other relevant Borrowers or the Canadian Borrower, as applicable), 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 Borrowers, Agents or 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 Borrowers (or the Canadian Borrower, as applicable), to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.14. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof of each of the condition conditions set forth in clause Section 4.02 (dit 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) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower Borrowers (or the Canadian Borrower, as applicable) will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) if the increase relates to the Tranche A Revolving Credit Facility, each Tranche A 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 Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Tranche A Revolving Credit Facility only), a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Tranche A Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Tranche A Revolving Credit Commitments of all Tranche A Revolving Credit Lenders represented by such Revolving Credit Lender’s Tranche A Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the 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.
(db) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (Nielsen CO B.V.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by written notice from the Company Borrower delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request one or more additional tranches increases in the amount of Loans the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase” and all Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” and the commitments thereof, in respect thereof are referred to as the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) no Event of Default pursuant to clauses (a) or (f) of Section 8.01 shall have occurred and be continuing or would exists after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of thereto and (xii) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, other than in the case of this clause (z)a Limited Condition Acquisition, the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) which shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to customary “Sungard” limitations, the ratio test described representations and warranties of the Borrower and each other Loan Party contained in foregoing clause (x)Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of such Credit Extension; provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent that such representations and warranties specifically refer to an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loansearlier date, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans they shall be increased to the extent true and correct in all material respects as of such differential between interest rate floorsearlier date; provided, further, that any Incremental Facility representation and warranty that constitutes fixed-rate Indebtedness is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be swapped true and correct (after giving effect to a floating rate any qualification therein) in all respects on a customary matched-maturity basis.such respective dates
(b) Except as Each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $2,500,000 (provided that such amount may be less than $2,500,000 if such amount represents all remaining availability under the limit set forth below) (and in Section 2.19(aminimum increments of $1,000,000 in excess thereof), and the aggregate amount of (x) the Incremental Loans Revolving Credit Commitment Increases incurred pursuant to this Section 2.14 plus (y) the aggregate principal amount of Permitted Additional Debt incurred under Section 7.03(u)(i) shall not exceed an amount that would cause the First Lien Senior Secured Leverage to exceed 3.00:1.00, as of the date of Incurrence of such Indebtedness or commitments, on a pro forma basis after giving effect to such incurrence (assuming any such incurrence is fully drawn) (the “Incremental Amount”).
(A) [Reserved].
(B) The Incremental Revolving Credit Commitment Increase shall be treated substantially on the same as terms as, and be treated the Loanssame as, the Revolving Credit Commitments (including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepaymentsmaturity date thereof) and Guarantees. shall be considered to be part of the Revolving Credit Facility (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Credit Commitment Increase).
(C) [Reserved].
(d) Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.14 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Revolving Credit Commitment Increases. Incremental Loans Revolving Credit Commitment Increases may be made provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld or delayed), by any existing Lender or any Additional Lender (provided it being understood that no existing Lender shall be obligated with a Revolving Credit Commitment will have any obligation to make provide a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateRevolving Credit Commitment Increase) or by any other bank, financial institution, other institutional lender or other investor (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank, financial institution or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agentother investor being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned withheld or delayed) to such Lender’s making or Additional Lender’s providing such Incremental Loans Revolving Credit Commitment Increases if such consent would be required under Section 10.6(b10.07(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender. .
(e) Commitments in respect of Incremental Loans Revolving Credit Commitment Increases shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental AmendmentAgreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriateadvisable, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section (including, subject in connection with an Incremental Revolving Credit Commitment Increase, to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect reallocate Revolving Credit Exposure on a pro rata basis among the Lenders affected therebyrelevant Revolving Credit Lenders). The effectiveness of any Incremental Amendment Agreement shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”)) and the occurrence of any extension of credit thereunder shall be subject to the satisfaction of such conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Loans Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement.
(df) Each No Lender shall be obligated to provide any Incremental Revolving Credit Commitment Increases unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Revolving Credit Commitment Increases.
(g) Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Lender with a Revolving Credit Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the representations Incremental Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase. If, on the date of such increase, there are any Revolving Credit Loans of such Class outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans of such Class being prepaid and warranties made any costs incurred by any Loan Party Lender in or 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 Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateimmediately preceding sentence.
(eh) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.02(b) or 10.1 10.01 to the contrary and contrary. For the Borrower and avoidance of doubt, any provisions of this Section 2.14 may be amended with the Administrative Agent may amend Section 2.12 consent of the Required Lenders; provided that no such amendment shall require any Lender to implement provide any Incremental AmendmentCommitment without such Lender’s consent.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, Company may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Term Commitments”, the loans thereunder, the “Incremental Term Loans”, ” and a Lender making such loans, an “Incremental Term Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an ) the creation and/or one or more subsequent increases of revolving commitments (“Incremental Amendment” with respect Revolving Commitments”), provided that (x) 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 at the establishment of the time that any such Incremental Term B-2 Commitments as “Loan or Incremental Commitments” Revolving Commitment is made (and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loans, thereto) no Default or Event of Default shall exist and (y) the aggregate amount of Incremental Term Loans or Incremental Revolving Commitments incurred during the term of this Agreement shall not exceed an amount equal the Maximum Pari Passu Facilities Amount. Except as permitted in clauses (ii) and (iii) of Section 2.18(b) and Section 2.18(d), all terms and documentation with respect to Incremental Term Loans or Incremental Revolving Commitments that (i) are materially more restrictive on MS Holdco and its Restricted Subsidiaries (when taken as a whole) than those with respect to any other Loans under the Facility or (ii) relate to provisions of a mechanical (including with respect to any Incremental Revolving Commitments, delayed draw facilities and currency mechanics) or administrative nature, shall be reasonably satisfactory to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or Administrative Agent.
(b), as the case may be, have been ) Each incurrence of Incremental Term Loans or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, Revolving Commitments shall be in the case of this clause (z), the an aggregate principal amount of Indebtedness incurred that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(cthe Maximum Pari Passu Facilities Amount)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the . The Incremental Term B-1 Loans or the Term B-2 Loans and Incremental Revolving Commitments (Bi) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and in right of security with the other Loans and Commitments hereunder;
Term Loans, (iiiii) the Incremental Loans shall not mature earlier than the Latest Maturity Date;
(iv) Date and, in the case of Incremental Loans Term Loans, shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
Term Loans (v) subject except by virtue of amortization of or prepayment of the Term Loans prior to clauses such date of determination), and (iii) except as set forth above, shall be treated substantially the same as the Term Loans (in -44- each case, including with respect to mandatory and voluntary prepayments, except that (x) such Incremental Term Loans may, to the extent provided in the applicable Incremental Amendment, participate on a less than pro rata basis in any mandatory prepayment pursuant to Section 2.6 and (ivy) the Borrower may prepay any Class of Term Loans at its option pursuant to Section 2.5); provided that the interest rates, fees and amortization schedule (subject to clause (ii) above, the interest rates and the amortization schedule ) applicable to any such the Incremental Term Loans or Incremental Revolving Commitments shall be determined by the Borrower Company and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder)lenders thereof; and
(vii) with respect to any Incremental Amendmentprovided further that, if the all-in-initial yield (whether in the form of interest rate margins, original issue discount, upfront fees on such Incremental Term Loans or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder Revolving Commitments (as determined by the Borrower and the applicable Incremental LendersYield Calculation Principles) exceeds the all-sum of (1) the Applicable Margin then in yield effect for Eurodollar Loans, and (after giving effect to interest rate margins (including 2) the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, Term Loans paid on the OID applicable to the refinanced loans shall be taken into account)Closing Date divided by four, by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, then the Applicable Margin then in effect for Term Loans shall automatically be increased by the Incremental Yield Differential; provided, that if effective upon the making of the Incremental Term Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any or Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and GuaranteesRevolving Commitments. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.18 shall set forth the requested amount and proposed terms of the relevant Incremental LoansTerm Loans or Incremental Revolving Commitments.
(c) Incremental Term Loans or Incremental Revolving Commitments may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) Term Loan or Incremental Revolving Commitment), in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all 2.18 and otherwise on terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory acceptable to the Administrative Agent; , provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Term Loans or Incremental Revolving Commitments if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by MS Holdco, the 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, 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 BorrowerCompany, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebySection. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition conditions set forth in clause Section 4.2 (dit being understood that all references to the date of such extension of credit or similar language in such Section 4.2(b) below and Section 4.2(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 effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower Company will use the proceeds of the Incremental Term Loans or loans made pursuant to any Incremental Revolving Commitment for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by Incremental Term Loans or Incremental Revolving Commitments may be denominated in Dollars or any Loan Party in or pursuant currency reasonably acceptable to the Loan Documents shall be true Administrative Agent and correct in all material respects (except where the Additional Lenders providing such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateFacility.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.18 shall supersede any provisions in Sections 2.12 Section 2.11 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement
Incremental Credit Extensions. (a) The US Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the First-Lien Lenders), request (i) one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (ii) one or more increases in the amount of the Revolving Credit Commitments (each such increase, and a Lender making such loans“Revolving Commitment Increase” and, an together with any Incremental Term Loans, a “Incremental LenderCredit Increase”); it being understood provided that (x) both at the time of any such request and upon the effectiveness of any Incremental Amendment No. 1 referred to below, no Default or Event of Default shall exist and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(iy) after giving effect to any such Incremental LoansCredit Increase and the use of the proceeds thereof, the Consolidated First-Lien Leverage Ratio shall be less than or equal to the Consolidated First-Lien Leverage Ratio on the Closing Date. Each Credit Increase shall be in an aggregate principal amount that is not less than $100,000,000 (or such lower amount that either (A) represents all remaining availability under the limit set forth in the next sentence or (B) is acceptable to the Administrative Agent). Notwithstanding anything to the contrary herein, the aggregate amount of Incremental Loans the Credit Increases shall not exceed an amount equal to the sum of $750,000,000. Each Incremental Term Loan (x1) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the then-existing Term Loans, (iii2) the Incremental Loans shall not mature earlier than the Term Loan Maturity Date;
, (iv3) the Incremental Loans shall have a Weighted Average Life an average life to Maturity no maturity not shorter than the Weighted Average Life remaining weighted average life to Maturity maturity of the Loans;
(v) subject to clauses (iii) then-existing Term Loans and (iv4) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether treated in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to same manner as the first proviso in this clause (vii)), with such increased amount being equated to interest margin Term Loans for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (viiSection 2.13(e))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company US Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.24 shall set forth the requested amount and proposed terms of the relevant Credit Increases. Incremental Loans.
(c) Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing First-Lien Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative AgentLender”); 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 withheld or delayed) to such First-Lien 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 10.6(b9.04(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such First-Lien Lender or Additional Lender. .
(b) Commitments in respect of Incremental Loans 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, executed by the each Borrower, each First-Lien 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, 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 US Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.24. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.01 (it being understood that all references to “the date of such Credit Event” or similar language in such Section 4.01 shall be deemed to refer to the effective date of such Incremental Amendment). The US Borrower will may use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Credit Increases unless it so agrees in its sole discretion. Upon each increase in the Revolving Credit Commitments pursuant to this Section, (a) each 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 Revolving Commitment Increase (each a “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 Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.16.
(dc) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.24 shall supersede any provisions in Sections 2.12 Section 2.18 or 10.1 9.08 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Effective Date, by written notice from the Company Borrower delivered to the Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request i) one or more additional tranches Classes of Loans term loans or additional or increases in term loans of the same Class of any existing Class of term loans, in each case, in Dollars or any other currency (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments thereof(the “Incremental Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to Section 1.10, at the ratio test described in foregoing clause (x); provided, further, time that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by Term Loan, Incremental Revolving Commitment Increase or Incremental Revolving Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the Borrower and the applicable Incremental Lenders;
proviso to clause (vib) below, no Default or Event of Default (or, in the case of the Incurrence or provision of any Incremental Facility in connection with a Limited Condition Transactionan Acquisition, no Default or Event of Default under Section 8.1(a7.01(a), (b), (h) or 8.1(f(i)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (have occurred and after giving effect to any Incremental Loans made thereunder); andbe continuing.
(viib) with respect to any Each tranche of Incremental AmendmentTerm Loans, if the all-in-yield (whether in the form each tranche of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower Revolving Commitments and the applicable each Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which Revolving Commitment Increase shall be deemed to constitute like in an aggregate principal amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are is not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective less than $5,000,000 (it being understood that such amount may be less than $5,000,000 if any such repricing was effected as a refinancing trancheamount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), the OID applicable and, subject to the refinanced loans shall be taken into account), by more than 50 basis points (proviso at the amount end of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in this Section 2.19(a2.20(b), the aggregate amount of the Incremental Loans shall be treated substantially the same as the Term Loans, including with respect Incremental Revolving Commitment Increases and the Incremental Revolving Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to mandatory and voluntary prepayments (unless this Section 2.20(b), shall not exceed, as of the applicable Incremental Lenders agree to a less than pro rata share date of Incurrence of such prepayments) and Guarantees. Each notice from Indebtedness or commitments, the Company Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.sum of
(cA) the Incremental Loans may be made by any existing Lender or any Additional Lender Base Amount plus
(provided that no Lender shall be obligated to make a portion B) an aggregate amount of any Incremental Loan) on terms permitted in this Section 2.19 andIndebtedness, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section includingthat, subject to Section 1.10, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Event to be consummated in connection therewith and assuming that all Incremental Revolving Commitment Increases, Incremental Revolving Commitments and other Incremental Commitments then outstanding and Incurred under this clause (bB) of this Section 2.19were fully drawn), amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall Borrower would be (unless waived or not required by the Incremental Lenders in connection compliance with a Limited Condition Transaction) subject Consolidated First Lien Leverage Ratio as of the last day of the Test Period most recently ended on or prior to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date Incurrence of any such Incremental AmendmentFacility, an calculated on a pro forma basis, as if such Incurrence (and such Specified Events) had occurred on the first day of such Test Period, that is no greater than 3.00:1.00 (this clause (B), the “Incremental Facility Closing DateRatio Debt Amount” and, together with the Incremental Base Amount, the “Incremental Limit”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.; provided that
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Sources: Credit Agreement (Weight Watchers International Inc)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower 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 or additions to an existing Class of Term Loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”, ” and a Lender making any such loansClass, an “Incremental LenderSeries”) or (b) one or more increases in the amount of the Tranche 34 Revolving Credit Commitments on the same terms as the Tranche 34 Revolving Credit Facility (except for interest rate margins and commitment fees) (a “Revolving Commitment Increase”); it being understood provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect to thereto) no Event of Default shall exist and (ii) the Borrower shall be in compliance with the covenants set forth in Section 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 cited in such Section shall be satisfied as of the last four quarters ended), in each case, as if such Incremental Term Loans or any borrowings under any such Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith. Each tranche of Incremental LoansTerm Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases, when aggregated with the amount of Permitted Notes issued in reliance on Section 7.03(s)(i) and Section 7.03(s)(ii)(x), shall not exceed an amount equal to the sum of (x) an unlimited amount at any time $350,000,000 (the “Initial Incremental Amount”) plus (y) the Borrower may incur additional Incremental Term Loans and/or Revolving Commitment Increases (a “Ratio-Based Incremental Facility”) so long as the Total Net Borrower’s First Lien Secured Leverage Ratio Ratio, determined on a Pro Forma Basis (but without giving effect to as of the cash proceeds remaining on the balance sheet of such Incremental Loans) as last day of the most recently completed period of four consecutive fiscal quarters ended Test Period for which the financial statements and certificates were required by to have been delivered pursuant to Section 5.1(a6.01(a) or (b), as applicable (or, if no Test Period has passed, as of the case may belast four quarters ended), have 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 Revolving Commitment Increase) had been or were required to have been delivered does outstanding on the last day of such four quarter period, shall not exceed 4.35 3.50 to 1.00 1.00. The Incremental Term Loans (without giving effect to any contemporaneous borrowing under clause (za) below), plus (y) shall rank pari passu or junior in right of payment and of security with the amount of all prior voluntary prepayments of the Loans, Incremental Revolving Credit Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c))Term Loans; provided that, for the avoidance that any Incremental Term Loans ranking junior in right of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans payment and (B) security shall be available at all times and shall not be subject deemed to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans for purposes of calculating the First Lien Secured Leverage Ratio with respect to any incurrence of a Ratio-Based Incremental Facility, (iiib) the Incremental Loans shall not mature earlier than the Maturity Date;
Date with respect to the Term B-5 Loans, (ivc) the Incremental Loans shall have a Weighted Average Life to Maturity no not shorter than the remaining Weighted Average Life to Maturity of then-existing Term B-5 Loans and (d) the Loans;
(v) Applicable Rate for the Incremental Term Loan, and subject to clauses clause (iii) and (ivc) above, amortization for the interest rates and the amortization schedule applicable to any such Incremental Term Loans shall be determined by the Borrower and the applicable new Lenders; provided, however, that if any such additional Incremental Lenders;
Term Loans are requested after the Amendment No. 89 Effective Date, (vii) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on then if the Incremental Facility Closing Date with respect to interest rate margins for any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if Term Loan is more than 50 basis points per annum greater than the all-in-yield (whether in the form of applicable interest rate marginsmargin under the Term B-5 Loans, original issue discount, upfront fees or then the applicable interest rate floors (subject margin under the Term B-5 Loans shall be adjusted so that the interest rate margins relating to the first proviso in this clause Term B-5 Loans is not less than the applicable interest rate margin to such Incremental Term Loans by more than ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (vii)), with such increased amount being equated to interest margin ▇▇) solely for purposes of determining the foregoing clause (i), the interest rate margins applicable to any increase Term Loans or Incremental Term Loans shall be deemed to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined include all upfront or similar fees or original issue discount payable by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject generally to the first proviso in this clause (vii))), original issue discount (equated to interest Lenders providing such Term Loans or such Incremental Term Loans based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangementarrangement fees, structuring fees, incentive fees, commitment fees, underwriting fees or other fees payable to any lead arranger (or its affiliates) in connection therewith that are not shared with all Lenders providing the commitment or syndication of such Indebtedness) and (iii) if the lowest permissible Eurocurrency Rate is greater than 0.75% or the lowest permissible Base Rate is greater than 1.75% for such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Term Loans, the differential difference between such interest rate floors “floor” and 0.75%, in the case of Eurocurrency Rate Incremental Term Loans, or 1.75%, in the case of Base Rate Incremental Term Loans, shall be equated to the interest rate margins margin for purposes of determining whether an increase 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 Applicable Margin shall be required, but only Term Loans to the extent an increase in the interest rate floor applicable such differences are reasonably satisfactory to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and GuaranteesAdministrative Agent. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (but each existing Lender (provided that no Lender shall be obligated will not have an obligation to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to Term Loan or any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding portion of any terms applicable after the Maturity DateRevolving Commitment Increase) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative natureother financial institution being called an “Additional Lender”), shall in each case be reasonably satisfactory to the Administrative Agent; 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 if or providing such Revolving Commitment Increases to the extent any such consent would be required under Section 10.6(b10.07(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, executed by the 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 Loan Party, Agents or Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)2.14. The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) if the increase relates to the Revolving Credit Facility, each 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 Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the 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.
(db) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower 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 Loans term loans or, if satisfactory to the Administrative Agent, an increase of an existing tranche (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”), and (b) one or more increases in the amount of the Dollar Revolving Credit Commitments (each such increase, a Lender making “Dollar Revolving Commitment Increase”) or (c) one or more increases in the amount of the Alternative Currency Revolving Credit Commitments (each such loansincrease, an “Incremental LenderAlternative Currency Revolving Commitment Increase” and, together with any Dollar Revolving Commitment Increase, a “Revolving Commitment Increase”); it being understood provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; 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 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. 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 $50,000,000 (provided that such amount may be less than a Dollar Amount of $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to any such Incremental Loansthe contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed an amount equal to the sum of $1,000,000,000. The Incremental Term Loans (xa) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans, (iiib) the Incremental Loans shall not mature earlier than the Maturity Date;
Date with respect to the Term Loans and (ivc) shall be treated substantially the same as the 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 shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity may be materially different from those of the Loans;
Term Loans to the extent such differences (vother than interest rates and amortization schedule) subject are reasonably acceptable to clauses (iii) the Administrative Agent and (ivii) above, the interest rates and the amortization schedule applicable to any such the Incremental Term Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on lenders thereof; provided that the Incremental Facility Closing Date with respect Term Loans shall not have a Weighted Average Life to any Incremental Amendment entered into in connection therewith Maturity shorter than that of the Term Loans (and after giving effect to any Incremental except by virtue of amortization or prepayment of the Term Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject prior to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount time of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”incurrence), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional Lender (provided it being understood that no existing Term Lender shall be obligated will have an obligation to make a portion of any Incremental Loan) 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 2.19 and, to the extent not permitted in this Section 2.19, all 2.14 and otherwise on terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory 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, conditioned or delayed) 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 10.6(b10.07(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, executed by the 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 LendersLenders 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 Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebySection. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof of each of the condition conditions set forth in clause Section 4.02 (dit 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) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will shall use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. 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.
(db) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
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Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by written notice from the Company Borrower delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request one or more additional tranches increases in the amount of Loans the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase” and all Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” and the commitments thereof, in respect thereof are referred to as the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood provided that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) no Event of Default shall have occurred and be continuing or would exists after giving effect to any such Incremental Loansthereto, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right representations and warranties of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, each other Loan Party contained in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender Article V or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents Document shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as date of such date, except Credit Extension; provided further that to the extent that such representations and warranties expressly relate specifically refer to an earlier date, in which case such representations and warranties they shall have been be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates and (iii) on a pro forma basis after giving effect to such increase, the Total Leverage Ratio (after assuming that the aggregate principal amount of all Loans equals the sum of the aggregate Revolving Credit Commitments and the aggregate Incremental Commitments) shall not exceed 3.25:1.00.
(eb) Notwithstanding anything Each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and, subject to the contrary herein, proviso at the end of this Section 2.19 2.14(b), the aggregate amount of the Incremental Revolving Credit Commitment Increases incurred pursuant to this Section 2.14 shall supersede any provisions in Sections 2.12 not exceed, as of the date of Incurrence of such Indebtedness or 10.1 to commitments, the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental AmendmentBase Amount.
(c) (A) [Reserved].
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Incremental Credit Extensions. (a) The Borrower mayAt any time, at any time or from time but not more than four (4) times during the term of this Agreement, and subject to time after the Closing Dateterms and conditions of this Section 2.20, by notice from the Company Borrower to the Administrative Agent may request (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request i) one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) and/or (ii) one or more increases in the Aggregate Revolving Commitment (each such increase, and a “Revolving Commitment Increase”) without the consent of any Lender making such loans, an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any not providing such Incremental Loans, the aggregate amount of Incremental Term Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b)Revolving Commitment Increases, as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for without the avoidance prior written consent of doubtall of the Lenders, the aggregate amount available to of all Incremental Term Loans and Revolving Commitment Increases made during the Borrower pursuant to term of this clause (z) Agreement shall not exceed $150,000,000. Any tranche of Incremental Term Loans (A) shall not be reduced by available to the Term B-1 Loans or the Term B-2 Loans and Company in Dollars, (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Loans and Commitments hereunder;
the Term Loans, (iiiC) the Incremental Loans shall not mature earlier than the Tranche B Term Loan Maturity Date;
Date (ivbut may, subject to the next succeeding clause (D), have amortization prior to such date), (D) the Incremental Loans shall not have a Weighted Average Life to Maturity no weighted average life that is shorter than the Weighted Average Life to Maturity then-remaining weighted average life of the Loans;
(v) subject to clauses (iii) Tranche B Term Loans and (ivE) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except except as set forth in Section 2.19(a)above, the Incremental Loans shall be treated substantially the same as (and in any event no more favorably than) the LoansTranche B Term Loans (in each case, including with respect to mandatory and voluntary prepayments prepayments); provided that (unless 1) the terms and conditions applicable to Incremental Lenders agree Term Loans maturing after the Tranche B Term Loan Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Tranche B Term Loan Maturity Date and (2) the Incremental Term Loans may be priced differently than the Tranche B Term Loans.
(b) Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in a minimum amount of $25,000,000 and integral multiples of $10,000,000. A commitment to make Incremental Term Loans shall become an “Incremental Term Loan Commitment” under this Agreement, and a commitment to participate in a Revolving Commitment Increase shall become a “Revolving Commitment” (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Lender’s Revolving Commitment) under this Agreement, in any such case, pursuant to a less than pro rata share “Commitment and Acceptance” substantially in the form of such prepaymentsExhibit C (a “Commitment and Acceptance”). Any request for a tranche of Incremental Term Loans or a Revolving Commitment Increase shall be made in a written notice (an “Increase Notice”) and Guarantees. Each notice from the Company Borrower given to the Administrative Agent pursuant and the Lenders by the Company not less than ten (10) Business Days or, in the case of a request for a tranche of Incremental Term Loans, twenty (20) Business Days, prior to Section 2.19(a) the proposed effective date therefor, which Increase Notice shall set forth specify the requested amount and proposed terms of the relevant proposed tranche of Incremental Term Loans or the Revolving Commitment Increase, as the case may be, and the proposed effective date thereof. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution, a “Proposed New Lender”); provided that any Proposed New Lender shall be consented to by the Administrative Agent and, in the case of a Revolving Commitment Increase, the Issuing Bank (which consent shall not be unreasonably withheld or delayed). The Administrative Agent shall notify the Company and the Lenders on or before the Business Day immediately prior to the proposed effective date of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or the Revolving Commitment Increase, of the amount of each Lender’s and Proposed New Lender’s Incremental Term Loan Commitment or new or increased Revolving Commitment, as applicable, and the resulting aggregate amount of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or the amount of the Aggregate Revolving Commitment, as the case may be, which amount shall be effective on the following Business Day, subject to the satisfaction of the conditions described in clause (c) below.
(c) Without limiting the applicability of any conditions to Borrowings set forth in this Agreement, the effectiveness of any tranche of Incremental Loans may be made by any existing Lender or any Additional Lender Term Loan Commitments (provided that no Lender and the corresponding availability of the related Incremental Term Loans) and the effectiveness of each Revolving Commitment Increase shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, subject to the extent not permitted following conditions precedent:
(i) Both as of the date of the applicable Increase Notice and as of the proposed effective date of such Incremental Term Loan Commitments (and related Incremental Term Loans) or Revolving Commitment Increase, (i) all representations and warranties under Article III and the other Loan Documents shall be true and correct in this Section 2.19, all terms and documentation material respects as though made on such date (except with respect to any Incremental Loan representation or warranty expressly stated to have been made as of a specific date which (i) are materially more restrictive on the Group Membersshall have been true and correct in all material respects as of such specified date), taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of no event shall have occurred and then be continuing which constitutes a mechanical Default and (including with respect iii) the Company shall have demonstrated to the Collateral Administrative Agent’s reasonable satisfaction that, as of the proposed effective date of the Incremental Term Loan Commitments, after giving effect thereto, the Company and currency mechanicsits Subsidiaries are in compliance on a pro forma basis with the covenants contained in Sections 6.14 and 6.15 recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available, as if such Incremental Term Loan Commitments had been effective as of the first day of each relevant period for testing such compliance;
(ii) the Borrowers, the Administrative Agent and each Proposed New Lender or administrative nature, Lender that shall have agreed to provide a “Commitment” in each case be support of such Incremental Term Loans or Revolving Commitment Increase shall have executed and delivered a Commitment and Acceptance;
(iii) counsel for the Borrowers and the Subsidiary Guarantors shall have provided to the Administrative Agent supplemental opinions in form and substance reasonably satisfactory to the Administrative Agent; provided ;
(iv) the Borrowers, the Subsidiary Guarantors and the Proposed New Lenders shall otherwise have executed and delivered such other instruments and documents as may be required under Article IV or that the Administrative Agent shall have consented reasonably requested in connection with such increase (such consent not to be unreasonably withheldincluding, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment in the case of Loans to such Lender or Additional Lender. Commitments in respect a tranche of Incremental Loans shall become Commitments under this Agreement pursuant to Term Loans, an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the BorrowerBorrowers, each Lender agreeing to provide such CommitmentIncremental Term Loans, if any, each Additional Proposed New Lender, if any, and the Administrative Agent. The Incremental Amendment , which amendment or amendments 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 BorrowerAgent, to effect the provisions of such Incremental Term Loans in accordance with this Section including2.20), subject to clause and each Loan Party shall have reaffirmed its obligations, and the Liens granted, under the Loan Documents; and
(bv) in the case of this Section 2.19a Revolving Commitment Increase, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment Administrative Agent shall be (unless waived or not required by have administered the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction reallocation of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (Revolving Credit Exposures on the effective date of such increase ratably among the Revolving Lenders (including new Lenders) after giving effect to such increase; provided, that (1) the Borrowers hereby agree to compensate the Revolving Lenders for all losses, expenses and liabilities incurred by any Revolving Lender in connection with the sale or assignment of any Eurocurrency Loan resulting from such reallocation on the terms and in the manner set forth in Section 2.16, and (2) 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 reallocation of Revolving Credit Exposures effected pursuant to this clause (v). Upon satisfaction of the conditions precedent to any tranche of Incremental AmendmentTerm Loans or Revolving Commitment Increase, the Administrative Agent shall promptly advise the Company and each Lender of the effective date thereof (each such effective date, an “Incremental Facility Closing Increase Effective Date”). The Borrower will use the proceeds of the Incremental Loans for Upon any purpose not prohibited Increase Effective Date that is supported by a Proposed New Lender, such Proposed New Lender shall become a party to this Agreement.
(d) Each of the representations Agreement as a Lender and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true the rights and correct in all material respects (except where such representations and warranties are already qualified by materialityobligations of a Lender hereunder. Nothing contained herein shall constitute, in which case such representation and warranty shall or otherwise be accurate in all respects) as deemed to be, a commitment on the part of such earlier dateany Lender to make Incremental Term Loans or increase its Revolving Commitment at any time.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, Borrowers may at any time or from time to time after the Closing Date, by notice from the Company Parent Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches increases in the amount of Loans the Revolving Credit Commitments (the commitments thereofeach such increase, the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental Lender”"Revolving Credit Commitment Increase"); it being understood provided that both at the time of any such request and upon the effectiveness of any Incremental Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect referred to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
below (i) after giving effect all representations and warranties in Article V shall be true and correct in all material respects (except where such representations and warranties expressly relate to any an earlier date, in which case such Incremental Loans, the aggregate amount representations and warranties shall have been true and correct in all material respects as of Incremental Loans shall not exceed an amount equal such earlier date and except to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on extent that a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of particular representation or warranty is already qualified by materiality, in which case such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements representation or warranty shall be true and certificates required by Section 5.1(a) or (bcorrect), as the case may be, have been (ii) no Default or were required to have been delivered does not exceed 4.35 to 1.00 Event of Default shall exist or would result therefrom and (without giving effect to any contemporaneous borrowing under clause (ziii) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred all Revolving Credit Commitment Increases shall not exceed $50,000,000.
(b) Each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is a whole multiple of $500,000 which is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in Section 6.1(b)(vi)(I)(c2.08(a)(iii) or Section 6.1(b)(vi)(II)(cabove)); provided that, for the avoidance of doubt, the amount available .
(c) The Revolving Credit Loans made pursuant to the Borrower pursuant to this clause Revolving Credit Commitment Increases (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (Ba) shall be available at all times made under and shall not be subject documented in this Agreement or pursuant to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans an amendment hereto and shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as or less favorably than the Loans, Revolving Credit Loans (including with respect to mandatory and voluntary prepayments and voting rights).
(unless the applicable Incremental Lenders agree to a less than pro rata share of such prepaymentsd) and Guarantees. Each notice from the Company Borrower to the Administrative Agent Borrowers pursuant to this Section 2.19(a) 2.08 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans Revolving Credit Commitment Increases. Revolving Credit Commitment Increases may be made provided by any existing Lender or by any other bank or other financial institution selected by the Borrowers (any such bank or other financial institution being called an "Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative AgentLender"); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making 's or Additional Lender's providing any such Incremental Loans Revolving Credit Commitment Increases if such consent would be required under Section 10.6(b) 11.06 for an assignment of Loans Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Incremental Loans Revolving Credit Commitment Increases shall become Revolving Credit Commitments (or in the case of a Revolving Credit Commitment Increase to be provided by an existing 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, executed by Holdings, the BorrowerBorrowers, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerBorrowers, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.08. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an "Incremental Facility Closing Date") of each of the condition conditions set forth in clause (d) below Section 4.02 52 and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower Borrowers will use the proceeds of the Incremental Loans Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement.. No Lender shall be obligated to provide any Revolving Credit Commitment Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.08, each 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 Revolving Credit Commitment Increase (each, a "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 Lender's participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding
(di) Each participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the representations aggregate Revolving Credit Commitments of all Lenders represented by such Lender's Revolving Credit Commitment and warranties made (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, the Lenders (including the Additional Lenders) shall make such payments as directed by any Loan Party the Administrative Agent in or pursuant to order that the Loan Documents Revolving Credit Loans are held by the Lenders (including Additional Lenders) ratably in accordance with the increased Revolving Credit Commitments (and interest and other payments shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateadjusted accordingly).
(e) Notwithstanding anything 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 contrary herein, transactions effected pursuant to this Section 2.19 2.08.
(f) This Section 2.08 shall supersede any provisions in Sections 2.12 Section 2.14, 2.15 or 10.1 11.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (Leslie's, Inc.)
Incremental Credit Extensions. (a) The So long as the Delayed Draw Termination Date has occurred or will occur contemporaneously with the making of any Incremental Term Loans contemplated hereby, the Borrower may, may at any time or from time to time after the Closing Dateon one or more occasions, by written notice from the Company Borrower delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request one or more additional tranches Classes of Loans term loans hereunder or additional term loans of the same Class of any existing Class of term loans hereunder (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for subject to Section 1.06, at the avoidance of doubttime that any such Incremental Term Loan is made or effected (and also immediately after giving effect thereto), the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (or, y) in connection with the case of Incremental Term Loans the proceeds of which will be used to finance a Limited Condition TransactionTransaction in which an LCT Election has been made, no Default or Event of Default under Section 8.1(a7.01(a), (b), (h) or 8.1(f)(i) shall exist have occurred and be continuing at the time that any such Incremental Term Loan is made and (B) subject to customary “SunGard” provisions in the case of an Incremental Term Loan the proceeds of which shall be used to fund a Limited Condition Transaction in which an LCT Election has been made, each of the representations and warranties made by any Loan Party set forth in Article III and in any other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Incremental Facility Closing Date with respect to date of the effectiveness of any Incremental Amendment entered into with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in connection therewith which case such representations and warranties shall be true and correct in all material respects (or in all respects, as the case may be) as of such earlier date. Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Term Loans that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 and after giving effect to any Incremental Loans made thereunderintegral multiples of $500,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); andprovided that such amount may be less than either of the foregoing amounts if either such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans permitted to be incurred pursuant to this paragraph (a).
(viib) The Incremental Term Loans (i) shall rank equal in right of payment with respect the Term Loans, shall be secured on a pari passu basis only by the Collateral securing the Secured Obligations and shall only be guaranteed by the Loan Parties, (ii) shall not mature earlier than the Term Maturity Date, (iii) shall not have a shorter Weighted Average Life to any Incremental AmendmentMaturity than the remaining Term Loans, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors iv) shall have a maturity date (subject to the first proviso in this preceding clause (viiii)), with such increased amount being equated to and interest margin rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment terms and premiums for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Term Loans made thereunder (as determined by the Borrower and the applicable Additional Lenders thereunder; provided that, in the event that the Effective Yield for any Incremental Lenders) exceeds Term Loans is greater than the all-in yield (after giving effect to interest rate margins (including Effective Yield for the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), Initial Term Loans by more than 50 basis points (0.50% per annum, then the amount of such excess above 50 basis points being referred to herein as Effective Yield for the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for the Incremental Term Loans 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 Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding); (v) shall be prepaid with the proceeds of voluntary or mandatory prepayment events on a pro rata basis with other then outstanding Term Loans (unless the Lenders or Additional Lenders of such differential between interest rate floorsIncremental Term Loans elect to receive a lesser share of any such prepayment); providedand (vi) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that, furtherexcept with respect to matters contemplated by clauses (iv) and (v) above, that the terms and conditions of any such Incremental Facility that constitutes fixed-rate Indebtedness Term Loans shall not be materially more restrictive to Holdings, the Borrower and its Restricted Subsidiaries, when taken as a whole, as reasonably determined by the Borrower in good faith, than the terms of the Initial Term Loans unless (1) such term is also added for the benefit of any corresponding existing Term Loans without the consent of the Administrative Agent or any Lender being required, (2) any such provisions apply after the Latest Maturity Date at the time of incurrence of such Incremental Term Loan or (3) such terms shall be swapped reasonably satisfactory to a floating rate on a customary matched-maturity basisthe Required Lenders.
(bc) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(cd) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Term Loan 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 each existing Lender shall have the right, but not the obligation, to participate in any Incremental Term Loan or, unless it agrees, to be obligated to provide any Term Loans pursuant thereto) or by any Additional Lender. Incremental Term Loans shall be “Term Loans” for all purposes of this Agreement and the other Loan Documents. The Incremental Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.20. The effectiveness of any Incremental Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Term Loan) pursuant to such Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree and as required by this Section 2.20 and Section 4.02 (but otherwise subject to Section 1.06 to the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”extent applicable). The Borrower will use the proceeds of the Incremental Term Loans to finance Permitted Acquisitions and to pay any fees, costs and expenses incurred in connection therewith.
(e) Incremental Term Loans may be provided by any existing Lender (in its sole discretion), or, subject to the consent of the Administrative Agent (not to be unreasonably withheld or delayed) if such consent would be required under Section 9.04 for any purpose not prohibited by assignments of Term Loans or Commitments, as applicable, to an Additional Lender.
(f) Each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(dg) Each The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into (i) any Incremental Amendment and/or any amendment to any other Loan Document as may be necessary in order to (A) establish new Classes or sub-Classes in respect of Term Loans or Commitments pursuant to this Section 2.20 and (B) implement any restrictive terms or conditions permitted or required to be provided to the Lenders pursuant to clause (b) of this Section 2.20 (which amendment shall be entered into by the Administrative Agent upon the reasonable request of the representations Borrower and warranties made by any Loan Party at the direction of the Required Lenders) and (ii) such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materialitysub-Classes, in which each case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateterms consistent with this Section 2.20.
(eh) Notwithstanding anything to the contrary hereincontrary, this Section 2.19 2.20 shall supersede any provisions in Sections 2.12 Section 2.18 or 10.1 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (Atlas Technical Consultants, Inc.)
Incremental Credit Extensions. (a) The Borrower may, Borrowers may at any time or from time to time after the Closing Amendment No. 4 Effective Date, by notice from the Company Parent Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches increases in the amount of Loans the Revolving Credit Commitments (the commitments thereofeach such increase, the a “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental LenderRevolving Credit Commitment Increase”); it being understood provided that both at the time of any such request and upon the effectiveness of any Incremental Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect referred to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
below (i) after giving effect all representations and warranties in Article V shall be true and correct in all material respects (except where such representations and warranties expressly relate to any an earlier date, in which case such Incremental Loans, the aggregate amount representations and warranties shall have been true and correct in all material respects as of Incremental Loans shall not exceed an amount equal such earlier date and except to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on extent that a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of particular representation or warranty is already qualified by materiality, in which case such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements representation or warranty shall be true and certificates required by Section 5.1(a) or (bcorrect), as the case may be, have been (ii) no Default or were required to have been delivered does not exceed 4.35 to 1.00 Event of Default shall exist or would result therefrom and (without giving effect to any contemporaneous borrowing under clause (ziii) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred all Revolving Credit Commitment Increases shall not exceed $50,000,000.
(b) Each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is a whole multiple of $500,000 which is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in Section 6.1(b)(vi)(I)(c2.08(a)(iii) or Section 6.1(b)(vi)(II)(cabove)); provided that, for the avoidance of doubt, the amount available .
(c) The Revolving Credit Loans made pursuant to the Borrower pursuant to this clause Revolving Credit Commitment Increases (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (Ba) shall be available at all times made under and shall not be subject documented in this Agreement or pursuant to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans an amendment hereto and shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as or less favorably than the Loans, Revolving Credit Loans (including with respect to mandatory and voluntary prepayments and voting rights).
(unless the applicable Incremental Lenders agree to a less than pro rata share of such prepaymentsd) and Guarantees. Each notice from the Company Borrower to the Administrative Agent Borrowers pursuant to this Section 2.19(a) 2.08 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans Revolving Credit Commitment Increases. Revolving Credit Commitment Increases may be made provided by any existing Lender or by any other bank or other financial institution selected by the Borrowers (any such bank or other financial institution being called an “Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative AgentLender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making or Additional Lender’s providing any such Incremental Loans Revolving Credit Commitment Increases if such consent would be required under Section 10.6(b) 11.06 for an assignment of Loans Revolving Credit Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Incremental Loans Revolving Credit Commitment Increases shall become Revolving Credit Commitments (or in the case of a Revolving Credit Commitment Increase to be provided by an existing 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, executed by Holdings, the BorrowerBorrowers, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerBorrowers, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.08. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof of each of the condition conditions set forth in clause (d) below Section 4.02 and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower Borrowers will use the proceeds of the Incremental Loans Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement.
(d) Each . No Lender shall be obligated to provide any Revolving Credit Commitment Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.08, each 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 representations Revolving Credit Commitment Increase (each, a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and warranties made each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Loan Party Revolving Credit Loans outstanding, the Lenders (including the Additional Lenders) shall make such payments as directed by the Administrative Agent in or pursuant to order that the Loan Documents Revolving Credit Loans are held by the Lenders (including Additional Lenders) ratably in accordance with the increased Revolving Credit Commitments (and interest and other payments shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateadjusted accordingly).
(e) Notwithstanding anything 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 contrary herein, transactions effected pursuant to this Section 2.19 2.08.
(f) This Section 2.08 shall supersede any provisions in Sections 2.12 Section 2.14, 2.15 or 10.1 11.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (Leslie's, Inc.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Effective Date, by written notice from the Company Borrower delivered to the Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request i) one or more additional tranches Classes of Loans term loans or additional or increases in term loans of the same Class of any existing Class of term loans, in each case, in Dollars or any other currency (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments thereof(the “Incremental Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”, the loans thereunder, the “Incremental Loans”, and a Lender making such loans, an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to Section 1.10, at the ratio test described in foregoing clause (x); provided, further, time that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by Term Loan, Incremental Revolving Commitment Increase or Incremental Revolving Commitment is made or effected (and after giving pro forma effect thereto), except as set forth in the Borrower and the applicable Incremental Lenders;
proviso to clause (vib) below, no Default or Event of Default (or, in the case of the Incurrence or provision of any Incremental Facility in connection with a Limited Condition Transactionan Acquisition or other Investment or any prepayment, redemption, repurchase, defeasance, acquisition or similar payment of Indebtedness or Equity Interests that requires irrevocable notice in advance thereof, no Default or Event of Default under Section 8.1(a7.01(a), (b), (h) or 8.1(f(i)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (have occurred and after giving effect to any Incremental Loans made thereunder); andbe continuing.
(viib) with respect to any Each tranche of Incremental AmendmentTerm Loans, if the all-in-yield (whether in the form each tranche of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower Revolving Commitments and the applicable each Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which Revolving Commitment Increase shall be deemed to constitute like in an aggregate principal amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are is not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective less than $5,000,000 (it being understood that such amount may be less than $5,000,000 if any such repricing was effected as a refinancing trancheamount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and, subject to the proviso at the end of this Section 2.20(b), the OID applicable aggregate amount of the Incremental Term Loans, Incremental Revolving Commitment Increases and the Incremental Revolving Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.20(b), shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the Incremental Base Amount. provided that
(i) Incremental Term Loans may be Incurred without regard to the refinanced loans shall be taken into accountIncremental Base Amount, without regard to whether an Event of Default has occurred and is continuing and without regard to the minimums set forth in the first part of this Section 2.20(b), by more than 50 basis points (to the amount extent that the Net Cash Proceeds from such Incremental Term Loans on the date of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness Incurrence of such Incremental Amendment, Term Loans (or substantially concurrently therewith) are used to either (x) prepay Term Loans and related amounts in accordance with the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as procedures set forth in Section 2.19(a)2.11(b) and/or (y) permanently reduce the Revolving Commitments, Extended Revolving Commitments or Incremental Revolving Commitments (and, if applicable, repay or reduce any related revolving exposure thereunder) in accordance with the procedures set forth in Section 2.11(g)(ii) (and any such Incremental Term Loans shall be treated substantially the same as the Loansdeemed to have been Incurred pursuant to this proviso), including with respect to mandatory and voluntary prepayments and
(unless the applicable ii) Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower Revolving Commitments may be provided without regard to the Administrative Agent pursuant Incremental Base Amount, without regard to Section 2.19(a) shall whether an Event of Default has occurred and is continuing and without regard to the minimums set forth in the requested amount and proposed terms first part of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and2.20(b), to the extent not permitted that the existing Revolving Commitments, Extended Revolving Commitments or other Incremental Revolving Commitments, as applicable, shall be permanently reduced (and, if applicable, any related revolving exposure repaid or reduced) in this accordance with Section 2.19, all terms and documentation with respect to any Incremental Loan which (i2.11(g)(ii) are materially more restrictive on the Group Members, taken as a whole, than those with respect by an amount equal to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect aggregate amount of Incremental Loans shall become Revolving Commitments under this Agreement pursuant to an amendment so provided (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or Revolving Commitments shall be deemed to have been Incurred pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier datethis proviso).
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Ww International, Inc.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments”, the loans thereunder, the “Incremental Term Loans”) or (ii) one or more increases in the amount of the Revolving Credit Commitments (each such increase, and a Lender making such loans“Revolving Commitment Increase” and, an together with any Incremental Term Loans, a “Incremental LenderCredit Increase”); it being understood provided, that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to both at the time of any such request and upon the effectiveness of any Incremental LoansAmendment referred to below, no Default or Event of Default shall exist and (ii) the Borrower shall be in Pro Forma Compliance with each of the covenants set forth in Sections 6.11 and 6.12. Each Credit Increase shall be in an aggregate principal amount that is not less than $20,000,000 (or such lower amount that either (a) represents all remaining availability under the limit set forth in the next sentence or (b) is acceptable to the Administrative Agent). Notwithstanding anything to the contrary herein, the aggregate amount of Incremental Loans the Credit Increases shall not exceed an amount equal to the sum of $100,000,000. The Incremental Term Loans (xa) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under clause (z) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $285,000,000 (less, in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans, (iiib) the Incremental Loans shall not mature earlier than the Term Loan Maturity Date;
(iv) Date and shall not require scheduled payments of principal at a rate exceeding quarterly payments in the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity amount of 0.25% of the Loans;
(v) subject to clauses (iii) original principal amount thereof and (ivc) except as set forth above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by treated substantially the Borrower and same as the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date Term Loans with respect to covenants, events of default, voting and mandatory and voluntary prepayments. If, prior to the completion of a Qualified Public Offering, the initial yield on any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Term Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect Administrative Agent to interest rate margins (including the interest rate floors (subject be equal to the first proviso in this clause sum of (vii))i) the margin above the LIBO Rate on such Incremental Term Loans and (ii) if such Incremental Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loans, being referred to herein as “OID”), original issue discount the amount of such OID divided by the lesser of (equated to interest based on an assumed four-year A) the average life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included Term Loans and equated to the interest rate(B) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), three) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, ) the Applicable Margin Percentage then in effect for Eurodollar Term Loans, then the Applicable Percentage then in effect for Term Loans shall automatically be increased by the Incremental Yield Differential; provided, that if effective upon the making of the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Term Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Credit Increases. Incremental Loans.
(c) Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (and each existing Term Lender (provided that no Lender shall be obligated will have the right to make a portion of any Incremental Loan) Term Loan and each existing Revolving Credit Lender will have the right to provide a portion of any Revolving Commitment Increase, in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all 2.24 and otherwise on terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory acceptable to the Administrative Agent; provided ) or 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 and the Borrower, and, in the case of any Revolving Credit Increase, the Issuing Bank and the Swingline Lender shall have consented (such consent in each case, not to be unreasonably withheld, conditioned withheld or delayed) 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 10.6(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 Loans 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, executed by the 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, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebySection. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.01 (it being understood that all references to “the date of such Credit Event” or similar language in such Section 4.01 shall be deemed to refer to the effective date of such Incremental Amendment). The Borrower will may use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement.. No Lender shall be obligated to provide any Credit Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each 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 Revolving Commitment Increase (each a “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 Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in
(dc) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.24 shall supersede any provisions in Sections 2.12 Section 2.18 or 10.1 9.08 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: First Lien Credit Agreement (Hawkeye Holdings, Inc.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), Date request one or more additional tranches Tranches of term loans or one or more increases to an existing Tranche of Loans (the commitments thereof, the “Incremental CommitmentsLoan Commitment”, the loans thereunder, the “Incremental Loans”, ” and a Lender making such loans, an “Incremental Lender”); it being understood that Amendment No. 1 and Amendment No. 2 each constituteconstituted an “Incremental Amendment” with respect to the establishment of the Term B-2 Commitments as “Incremental Commitments” and the Term B-2 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans Facilities Incurred during the term of this Agreement shall not exceed the Maximum Incremental Facilities Amount;
(ii) no Person shall be an amount equal obligor under any Incremental Facility that is not a Loan Party and no Incremental Facility may be secured by assets that are not Collateral;
(iii) upon the effectiveness of any Incremental Document and at the time that any such Incremental Loan is made (and after giving effect thereto), no Event of Default shall exist; provided that if the proceeds of any Incremental Loans are intended to be used to finance a Permitted Acquisition or other Investment permitted hereunder, in each case that is a Limited Condition Transaction, then the requirement of no Event of Default set forth in this clause (iii) may be waived or not required by the applicable Incremental Lenders (other than with respect to a Significant Event of Default);
(iv) upon the effectiveness of any Incremental Document and at the time that any such Incremental Loan is made (and after giving effect thereto), the representations and warranties made by any Loan Party in or pursuant to the sum Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date (x) an unlimited amount at any time so long as the Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect except to the cash proceeds remaining on extent already qualified by materiality, in which case, such representations and warranties shall be true and correct in all respects), except to the balance sheet extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date (except to the extent already qualified by materiality, in which case, such representations and warranties shall be true and correct in all respects); provided that if the proceeds of any Incremental Loans) as of Loans are intended to be used to finance a Permitted Acquisition or other Investment permitted hereunder, in each case that is a Limited Condition Transaction, then the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 4.35 to 1.00 (without giving effect to any contemporaneous borrowing under requirements set forth in this clause (ziv) below), plus may be limited by the applicable Incremental Lenders to the Specified Representations;
(yv) the amount of all prior voluntary prepayments of the Loans, Incremental Loans may be denominated in Dollars, Euros, Pounds Sterling or any other Available Currency;
(vi) Incremental Facilities shall rank no greater than pari passu in right of payment and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) no greater than pari passu in right of security with the Initial Loans; provided that any Incremental Facility that is secured by the Collateral on a pari passu junior basis with to the Obligations prior to such time, plus (z) $285,000,000 (less, or that is set forth in the case of this clause (z), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(I)(c) or Section 6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (z) (A) an Incremental Agreement shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x), (y) or (z) above in such order as it may elect in its sole discretionan Acceptable Intercreditor Agreement;
(iivii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the than Customary Bridge Facilities, Incremental Loans shall not mature earlier than the Initial Loan Maturity Date;
(iv) the Incremental Loans Date and shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the LoansInitial Loans (except by virtue of prepayment of the Initial Loans prior to such date of determination);
(vviii) subject to clauses clause (iii) and (ivvii) above, the interest rates and (A) the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(viix) no Default except to the extent permitted by clauses (v), (vii) and (viii) above and clauses (x) and (xi) below, the terms of such Incremental Loans (other than any terms (x) applicable after the Latest Maturity Date of the Initial Loans or Event (y) that are also made for the benefit of Default the Lenders under the Initial Loans (or, which will be documented in connection with a Limited Condition Transaction, no Default or Event an amendment to this Agreement requiring only the consent of Default under Section 8.1(a) or 8.1(fthe Borrower and the Administrative Agent)) shall exist on (A) be substantially identical to, or no more favorable (taken as a whole) to the lenders providing such Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental than, the Initial Loans made thereunder); and
(vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder Agreement and each other Loan Document (as determined by the Borrower in good faith), (B) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of Incurrence thereof (or obtaining of a commitment with respect thereto), or (C) be reasonably satisfactory to the Administrative Agent;
(x) the All-In Yield applicable to the Incremental Loans made hereunder shall be determined by the Borrower and the applicable Incremental Lenders) ; provided that with respect to any Incremental Document in respect of Incremental Loans in the form of a broadly syndicated “term B facility” denominated in Dollars and secured by the Collateral on a pari passu basis with the Initial Loans, if the All-In Yield in respect of such Incremental Loans exceeds the allAll-In Yield in yield (after giving effect to interest rate margins (including respect of the interest rate floors (subject Initial Loans by more than 0.50%, the Applicable Rate of the Initial Loans shall be adjusted such that the All-In Yield of the Initial Loans equals the All-In Yield of such Incremental Loans minus 0.50%, effective upon the making of such Incremental Loans; provided further that any amendments to the first proviso Applicable Rate in this clause (vii))), original issue discount (equated respect of the Initial Loans that become effective subsequent to interest based on an assumed four-year life the Closing Date but prior to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing time such Incremental Loan, which Loans are borrowed shall also be included in such calculations; provided further that this Section 2.15(a)(x) shall not be included and equated apply to the interest rateMFN Exceptions;
(xi) Incremental Loans may participate (i) on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayments of the Initial Loans, and (ii) on a pro rata basis or less than pro rata basis (and on a greater than pro rata basis with respect to mandatory prepayments of any such Incremental Loans with the proceeds of Credit Agreement Refinancing Indebtedness) with respect to any mandatory prepayments of Incremental Loans; and
(xii) the existing Loans, after giving effect Borrower may appoint any Person (or Persons) to any increase or repricing thereof that has theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that arrange any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped and provide such arranger (or arrangers) any titles to a floating rate on a customary matched-maturity basissuch Incremental Facility as it deems appropriate.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans[Reserved].
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make all or a portion of any Incremental Loan) ), in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent2.15; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned withheld or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) 13.4 for an assignment of Loans to such Lender or Additional Lender. Incremental Loan Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement or, in the case of any Incremental Loans that are not secured on a pari passu basis with the Initial Loans pursuant to separate documentation (an “Incremental Agreement” and, together with an Incremental Amendment, “Incremental Documents”) and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment Document may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including2.15, subject to clause (b) of this Section 2.19, including amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition TransactionLenders, which may include amendments to Sections 2.4(a) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”5.1(b). The Borrower will may use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date[Reserved].
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.15 shall supersede any provisions in Sections 2.12 Section 2.8 or 10.1 13.12 to the contrary and the Borrower and the Administrative Agent may amend extent they conflict with this Section 2.12 to implement any Incremental Amendment2.15.
Appears in 1 contract
Sources: Second Lien Credit and Guaranty Agreement (Informatica Inc.)