Incremental Credit Extensions. (a) Finance may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (i) one or more additional Classes of term loans (each a “Incremental Term Facility”) and/or (ii) one or more additional term loans of the same Class of any existing Class of term loans (each a “Incremental Term Increase”), and the Co-Borrowers may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (i) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) and/or (ii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with any Incremental Term Facility, Incremental Term Increase and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that after giving effect to any Incremental Facility Amendment referred to below and at the time that any such Incremental Facility is made or effected, (x) no Event of Default (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, no Specified Event of Default) shall have occurred and be continuing and (y) the representations and warranties set forth in the Loan Documents (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, customary specified representations and warranties and customary specified acquisition agreement representations and warranties) shall be true and correct in all material respects on and as of such date (provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respect as of such earlier date; provided further that, in each case, any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respect as of such date). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental 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 $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Co-Borrowers and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above. (i) The Incremental Term Facilities (A) shall (1) rank equal or junior in right of payment with the Initial Term Loans, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Term Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) and prepayment terms and premiums and other terms and conditions as determined by Finance and the Additional Term Lenders thereunder; provided that, for any Incremental Term Facility that ranks equal in right of payment with the Initial Term Loans and is secured by the Collateral on a pari passu basis with the Secured Obligations, in the event that the Effective Yield for any such Incremental Term Facility is greater than the Effective Yield for the Initial Term Loans by more than 0.50% per annum, the Effective Yield for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for such Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Facility prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding), (E) shall not have the benefit of mandatory prepayment provisions that are more favorable to the applicable lenders or creditors than those of the Initial Term Loans (it being understood that any such Indebtedness that is secured on a pari passu basis by the Collateral with the Secured Obligations may participate on a pro rata basis or a less than a pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments in respect of the Initial Term Loans), unless (1) the Lenders of the Initial Term Loans also receive the benefit of such more favorable terms or (2) any such provisions apply only after the Initial Term Maturity Date and (F) may otherwise have terms and conditions as agreed between Finance and the Additional Term Lenders providing any such Incremental Term Facility but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith). (ii) The Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms applicable to the Class of Term Loans being increased (excluding upfront fees and customary arranger fees); provided that (i) if required to consummate the applicable Incremental Term Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect of any such Incremental Term Increase is to increase the Effective Yield of the Class of Term Loans being increased (as contemplated by the immediately preceding clause (i)), then such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions set forth in the proviso to Section 2.20(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunder. (iii) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Revolving Commitments being increased and shall be on the same terms applicable to the Class of Revolving Commitments being increased (excluding upfront fees and customary arranger fees); provided that if required to consummate the applicable Incremental Revolving Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders). (iv) The Additional/Replacement Revolving Commitments (and the Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) and commitment reduction and termination terms as determined by the Co-Borrowers and Additional Revolving Lenders providing such commitments and (D) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith). (c) Each notice from any Co-Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Commitment in respect of an Incremental Term Facility, Incremental Term Increase, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments. (d) Incremental Facilities shall become Commitments and Loans, as applicable, under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, each Co-Borrower, each Additional Lender and the Administrative Agent. Any Incremental Facility Amendment may provide for the issuance of additional letters of credit for the account of any Co-Borrower or the incurrence of additional swingline loans by any Co-Borrower pursuant to any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Initial Revolving Commitments; provided that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An Incremental Facility may be provided, subject to the prior written consent of each Co-Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facility or, unless it agrees, shall be obligated to provide any Incremental Facilities). Any loan under an Incremental Facility shall be a “Loan” for all purposes of this Agreement and the other Loan Documents, and any commitment under any Incremental Facility shall be a “Commitment” for all purposes of this Agreement and the other Loan Documents. Any 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, in the reasonable opinion of the Administrative Agent and each Co-Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the Initial Revolving Maturity Date shall be reallocated from Lenders holding Initial Revolving Commitments to Lenders holding Additional/Replacement Revolving Commitments in accordance with the terms of such Incremental Facility Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Additional/Replacement Revolving Commitments, be deemed to be participation interests in respect of such Additional/Replacement Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly. 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 and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to delivery of a Borrowing Request in accordance with Section 2.03 and the satisfaction of such conditions as the parties thereto shall agree and as required by this Section 2.20. Each Co-Borrower will use the proceeds of the Incremental Term Loans, Incremental Term Increases, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (e) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) Finance The Borrower may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (i) one or more additional Classes of term loans (each a “Incremental Term Facility”) and/or (ii) one or more additional term loans of the same Class of any existing Class of term loans (each a the “Incremental Term IncreaseLoans”), and the Co-Borrowers may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (iii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) and/or or (iiiii) one or more additional Classes of Revolving Commitments revolving credit commitments (the “Additional/Replacement Incremental Revolving Commitments,” and, together with any the Incremental Term Facility, Incremental Term Increase Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that after giving effect that, subject to any Incremental Facility Amendment referred to below and Section 1.10, at the time that any such Incremental Facility Term Loan, Incremental Revolving Commitment Increase or Incremental Revolving Commitment is made or effectedeffected (and after giving pro forma effect thereto), except as set forth in the proviso to clause (xb) below, no Event of Default (or, in the case of the incurrence Incurrence or provision of any Incremental Facility in connection with a Limited Condition Transactionan Acquisition, (x) no Specified Event of DefaultDefault under Section 7.01(a), (b), (h) or (i)) shall have occurred and be continuing and (y) the representations and warranties of each Loan Party set forth in the Loan Documents (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, customary specified representations and warranties and customary specified acquisition agreement representations and warranties) shall be true and correct in all material respects on and as of the date of such Borrowing or the date (of issuance, amendment, renewal or extension of such Letter of Credit, as the case may be before and after giving effect to such Borrowing or issuance, amendment, renewal or extension of such Letter of Credit and to the application of proceeds therefrom, as though made on and as of such date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier datedate or period, they shall be true and correct in all material respect respects as of such earlier datedate or period; provided further that, in each case, that any representation and warranty that is qualified as to “materiality”, ,” “Material Adverse Effect” or similar language shall be true and correct in all respect as respects on the date of such credit extension or on such earlier date, as the case may be (after giving effect to such qualification). Notwithstanding anything to the contrary herein.
(b) Each tranche of Incremental Term Loans, the each tranche of Incremental Revolving Commitments and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount of the Incremental Facilities that can be incurred at any time shall is not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of less than $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Co-Borrowers and the Administrative Agent otherwise agree); provided it being understood that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities limit set forth above.
below) (i) The Incremental Term Facilities (A) shall (1) rank equal or junior and in right minimum increments of payment with the Initial Term Loans, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Term Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) and prepayment terms and premiums and other terms and conditions as determined by Finance and the Additional Term Lenders thereunder; provided that, for any Incremental Term Facility that ranks equal $1,000,000 in right of payment with the Initial Term Loans and is secured by the Collateral on a pari passu basis with the Secured Obligations, in the event that the Effective Yield for any such Incremental Term Facility is greater than the Effective Yield for the Initial Term Loans by more than 0.50% per annum, the Effective Yield for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for such Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Facility prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding), (E) shall not have the benefit of mandatory prepayment provisions that are more favorable to the applicable lenders or creditors than those of the Initial Term Loans (it being understood that any such Indebtedness that is secured on a pari passu basis by the Collateral with the Secured Obligations may participate on a pro rata basis or a less than a pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments in respect of the Initial Term Loans), unless (1) the Lenders of the Initial Term Loans also receive the benefit of such more favorable terms or (2) any such provisions apply only after the Initial Term Maturity Date and (F) may otherwise have terms and conditions as agreed between Finance and the Additional Term Lenders providing any such Incremental Term Facility but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(ii) The Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to the maturity date excess thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms applicable to the Class of Term Loans being increased (excluding upfront fees and customary arranger fees); provided that (i) if required to consummate the applicable Incremental Term Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect of any such Incremental Term Increase is to increase the Effective Yield of the Class of Term Loans being increased (as contemplated by the immediately preceding clause (i)), then such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions set forth in the proviso to Section 2.20(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunder.
(iii) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Revolving Commitments being increased and shall be on the same terms applicable to the Class of Revolving Commitments being increased (excluding upfront fees and customary arranger fees); provided that if required to consummate the applicable Incremental Revolving Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders).
(iv) The Additional/Replacement Revolving Commitments (and the Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) and commitment reduction and termination terms as determined by the Co-Borrowers and Additional Revolving Lenders providing such commitments and (D) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(c) Each notice from any Co-Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Commitment in respect of an Incremental Term Facility, Incremental Term Increase, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments.
(d) Incremental Facilities shall become Commitments and Loans, as applicable, under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, each Co-Borrower, each Additional Lender and the Administrative Agent. Any Incremental Facility Amendment may provide for the issuance of additional letters of credit for the account of any Co-Borrower or the incurrence of additional swingline loans by any Co-Borrower pursuant to any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Initial Revolving Commitments; provided that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An Incremental Facility may be provided, subject to the prior written consent of each Co-Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have proviso at the right to participate in any Incremental Facility or, unless it agrees, shall be obligated to provide any Incremental Facilities). Any loan under an Incremental Facility shall be a “Loan” for all purposes end of this Agreement and the other Loan Documents, and any commitment under any Incremental Facility shall be a “Commitment” for all purposes of this Agreement and the other Loan Documents. Any 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, in the reasonable opinion of the Administrative Agent and each Co-Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the Initial Revolving Maturity Date shall be reallocated from Lenders holding Initial Revolving Commitments to Lenders holding Additional/Replacement Revolving Commitments in accordance with the terms of such Incremental Facility Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Additional/Replacement Revolving Commitments, be deemed to be participation interests in respect of such Additional/Replacement Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly. 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 and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to delivery of a Borrowing Request in accordance with Section 2.03 and the satisfaction of such conditions as the parties thereto shall agree and as required by this Section 2.20. Each Co-Borrower will use the proceeds aggregate amount of the Incremental Term Loans, Incremental Term 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 Transaction or Specified Restructuring to be consummated in connection therewith and assuming that all Incremental Revolving Commitment Increases, Incremental Revolving Commitment Increases Commitments and Additional/Replacement Revolving other Incremental Commitments for any purpose not prohibited by then outstanding and Incurred under this Agreement.
clause (eB) Notwithstanding anything were fully drawn), the Borrower would be in compliance with a Consolidated First ▇▇▇▇ ▇▇▇▇▇ Leverage Ratio as of the last day of the Test Period most recently ended on or prior to the contraryIncurrence of any such Incremental Facility, calculated on a pro forma basis, as if such Incurrence (and transactions) had occurred on the first day of such Test Period, that is no greater than 3.50:1.00 (this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to clause (B), the contrary.“Incremental Ratio Debt Amount” and, together with the Incremental Base Amount, the “Incremental Limit”); provided that
Appears in 1 contract
Incremental Credit Extensions. (a) Finance The Borrower may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (i) one or more additional Classes of term loans (each a “Incremental Term Facility”) and/or (ii) one or more additional or increases in term loans of the same Class of any existing Class of term loans loans, in each case, in Dollars or any other currency (each a the “Incremental Term IncreaseLoans”), and the Co-Borrowers may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (iii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) and/or or (iiiii) one or more additional Classes of Revolving Commitments revolving credit commitments (the “Additional/Replacement Incremental Revolving Commitments,” and, together with any the Incremental Term Facility, Incremental Term Increase Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that after giving effect that, subject to any Incremental Facility Amendment referred to below and Section 1.10, at the time that any such Incremental Facility Term Loan, Incremental Revolving Commitment Increase or Incremental Revolving Commitment is made or effectedeffected (and after giving pro forma effect thereto), except as set forth in the proviso to clause (xb) below, no Event of Default (or, in the case of the incurrence 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 Specified Event of DefaultDefault under Section 7.01(a), (b), (h) or (i)) shall have occurred and be continuing continuing.
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Revolving Commitments and (y) the representations and warranties set forth in the Loan Documents (or, in the case of the incurrence or provision of any each Incremental Facility in connection with a Limited Condition Transaction, customary specified representations and warranties and customary specified acquisition agreement representations and warranties) Revolving Commitment Increase shall be true and correct in all material respects on and as of such date (provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respect as of such earlier date; provided further that, in each case, any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respect as of such date). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall is not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of less than $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Co-Borrowers and the Administrative Agent otherwise agree); provided it being understood that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities limit set forth above.
below) (i) The Incremental Term Facilities (A) shall (1) rank equal or junior and in right minimum increments of payment with the Initial Term Loans, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Term Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) and prepayment terms and premiums and other terms and conditions as determined by Finance and the Additional Term Lenders thereunder; provided that, for any Incremental Term Facility that ranks equal $1,000,000 in right of payment with the Initial Term Loans and is secured by the Collateral on a pari passu basis with the Secured Obligations, in the event that the Effective Yield for any such Incremental Term Facility is greater than the Effective Yield for the Initial Term Loans by more than 0.50% per annum, the Effective Yield for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for such Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Facility prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding), (E) shall not have the benefit of mandatory prepayment provisions that are more favorable to the applicable lenders or creditors than those of the Initial Term Loans (it being understood that any such Indebtedness that is secured on a pari passu basis by the Collateral with the Secured Obligations may participate on a pro rata basis or a less than a pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments in respect of the Initial Term Loans), unless (1) the Lenders of the Initial Term Loans also receive the benefit of such more favorable terms or (2) any such provisions apply only after the Initial Term Maturity Date and (F) may otherwise have terms and conditions as agreed between Finance and the Additional Term Lenders providing any such Incremental Term Facility but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(ii) The Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to the maturity date excess thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms applicable to the Class of Term Loans being increased (excluding upfront fees and customary arranger fees); provided that (i) if required to consummate the applicable Incremental Term Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect of any such Incremental Term Increase is to increase the Effective Yield of the Class of Term Loans being increased (as contemplated by the immediately preceding clause (i)), then such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions set forth in the proviso to Section 2.20(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunder.
(iii) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Revolving Commitments being increased and shall be on the same terms applicable to the Class of Revolving Commitments being increased (excluding upfront fees and customary arranger fees); provided that if required to consummate the applicable Incremental Revolving Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders).
(iv) The Additional/Replacement Revolving Commitments (and the Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) and commitment reduction and termination terms as determined by the Co-Borrowers and Additional Revolving Lenders providing such commitments and (D) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(c) Each notice from any Co-Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Commitment in respect of an Incremental Term Facility, Incremental Term Increase, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments.
(d) Incremental Facilities shall become Commitments and Loans, as applicable, under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, each Co-Borrower, each Additional Lender and the Administrative Agent. Any Incremental Facility Amendment may provide for the issuance of additional letters of credit for the account of any Co-Borrower or the incurrence of additional swingline loans by any Co-Borrower pursuant to any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Initial Revolving Commitments; provided that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An Incremental Facility may be provided, subject to the prior written consent of each Co-Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have proviso at the right to participate in any Incremental Facility or, unless it agrees, shall be obligated to provide any Incremental Facilities). Any loan under an Incremental Facility shall be a “Loan” for all purposes end of this Agreement and the other Loan Documents, and any commitment under any Incremental Facility shall be a “Commitment” for all purposes of this Agreement and the other Loan Documents. Any 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, in the reasonable opinion of the Administrative Agent and each Co-Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the Initial Revolving Maturity Date shall be reallocated from Lenders holding Initial Revolving Commitments to Lenders holding Additional/Replacement Revolving Commitments in accordance with the terms of such Incremental Facility Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Additional/Replacement Revolving Commitments, be deemed to be participation interests in respect of such Additional/Replacement Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly. 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 and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to delivery of a Borrowing Request in accordance with Section 2.03 and the satisfaction of such conditions as the parties thereto shall agree and as required by this Section 2.20. Each Co-Borrower will use the proceeds aggregate amount of the Incremental Term Loans, Incremental Term 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 Commitment Increases Commitments and Additional/Replacement 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 Incremental Facility, 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 Ratio 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, 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), to the extent that the Net Cash Proceeds from such Incremental Term Loans on the date of Incurrence of such Incremental Term Loans (or substantially concurrently therewith) are used to either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 2.11(b) and/or (y) permanently reduce the Revolving Commitments, Extended Revolving Commitments for or Incremental Revolving Commitments (and, if applicable, repay or reduce any purpose not prohibited by 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 deemed to have been Incurred pursuant to this Agreement.proviso), and
(eii) Notwithstanding anything Incremental Revolving Commitments may be provided without regard to the contraryIncremental Limit, without regard to whether an Event of Default has occurred and is continuing and without regard to the minimums set forth in the first part of this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 2.20(b), to the contraryextent 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 accordance with Section 2.11(g)(ii) by an amount equal to the aggregate amount of Incremental Revolving Commitments so provided (and any such Incremental Revolving Commitments shall be deemed to have been Incurred pursuant to this proviso).
Appears in 1 contract
Incremental Credit Extensions. (a) Finance 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 at any time or from time to time on one or more occasions after the Effective Dateoccasions, by written notice delivered to the Administrative Agent Agent, request (i) one or more additional Classes of term loans (each a “Incremental Term Facility”) and/or (ii) one hereunder or more additional term loans of the same Class of any existing Class of term loans hereunder (each a the “Incremental Term Increase”), and the Co-Borrowers may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (i) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) and/or (ii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with any Incremental Term Facility, Incremental Term Increase and the Incremental Revolving Commitment Increases, the “Incremental FacilitiesLoans”); provided that after giving effect that, subject to any Incremental Facility Amendment referred to below and Section 1.06, at the time that any such Incremental Facility Term Loan is made or effectedeffected (and also immediately after giving effect thereto), (A) (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (or, y) in the case of Incremental Term Loans the incurrence or provision proceeds of any Incremental Facility in connection with which will be used to finance a Limited Condition TransactionTransaction in which an LCT Election has been made, no Specified Event of DefaultDefault under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing at the time that any such Incremental Term Loan is made and (yB) 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 the Article III and in any other Loan Documents (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, customary specified representations and warranties and customary specified acquisition agreement representations and warranties) Document shall be true and correct in all material respects on and as of such date (provided that, in each case, to the extent except that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respect as of such earlier date; provided further that, in each case, any representation and warranty that is qualified as to “materiality”, ” or “Material Adverse Effect” or similar language shall be true and correct in all respect respects) on and as of the date of the effectiveness of any Incremental Amendment 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 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 the contrary herein, the aggregate principal amount of the Incremental Facilities Term Loans that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 500,000 in excess thereof (unless the Co-Borrowers Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 either of the foregoing amounts if either such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth aboveTerm Loans permitted to be incurred pursuant to this paragraph (a).
(ib) The Incremental Term Facilities Loans (Ai) shall (1) rank equal or junior in right of payment with the Initial Term Loans, (2) if secured, shall be secured on a pari passu basis only by the Collateral securing the Secured Obligations and (3) shall only be guaranteed by the Loan Parties, (Bii) shall not mature earlier than the Initial Term Maturity Date, (Ciii) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (Div) shall have a maturity date (subject to the preceding clause (Bii)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) discounts and prepayment terms and premiums and other terms and conditions for the Incremental Term Loans as determined by Finance the Borrower and the Additional Term Lenders thereunder; provided that, for any Incremental Term Facility that ranks equal in right of payment with the Initial Term Loans and is secured by the Collateral on a pari passu basis with the Secured Obligations, in the event that the Effective Yield for any such Incremental Term Facility Loans is greater than the Effective Yield for the Initial Term Loans by more than 0.50% per annum, then the Effective Yield for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for such the Incremental Term Facility 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 Facility Loans prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding), ; (Ev) shall not have be prepaid with the benefit proceeds of voluntary or mandatory prepayment provisions that are more favorable events on a pro rata basis with other then outstanding Term Loans (unless the Lenders or Additional Lenders of such Incremental Term Loans elect to the applicable lenders or creditors than receive a lesser share of any such prepayment); and (vi) may otherwise have terms and conditions different from those of the Initial Term Loans Loans; provided that, except with respect to matters contemplated by clauses (it being understood that iv) and (v) above, the terms and conditions of any such Indebtedness that is secured on Incremental Term Loans shall not be materially more restrictive to Holdings, the Borrower and its Restricted Subsidiaries, when taken as a pari passu basis whole, as reasonably determined by the Collateral with Borrower in good faith, than the Secured Obligations may participate on a pro rata basis or a less than a pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments in respect of the Initial Term Loans), unless (1) the Lenders terms of the Initial Term Loans unless (1) such term is also receive added for the benefit of such more favorable terms any corresponding existing Term Loans without the consent of the Administrative Agent or any Lender being required, (2) any such provisions apply only after the Initial Term Latest Maturity Date and (F) may otherwise have terms and conditions as agreed between Finance and at the Additional Term Lenders providing any time of incurrence of such Incremental Term Facility but without any financial covenants Loan or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(ii) The Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms applicable to the Class of Term Loans being increased (excluding upfront fees and customary arranger fees); provided that (i) if required to consummate the applicable Incremental Term Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect of any such Incremental Term Increase is to increase the Effective Yield of the Class of Term Loans being increased (as contemplated by the immediately preceding clause (i)), then such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions set forth in the proviso to Section 2.20(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunder.
(iii) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Revolving Commitments being increased and shall be on the same terms applicable to the Class of Revolving Commitments being increased (excluding upfront fees and customary arranger fees); provided that if required to consummate the applicable Incremental Revolving Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders).
(iv) The Additional/Replacement Revolving Commitments (and the Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only such terms shall be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior reasonably satisfactory to the Initial Revolving Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) and commitment reduction and termination terms as determined by the Co-Borrowers and Additional Revolving Lenders providing such commitments and (D) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith)Required Lenders.
(c) Each notice from any Co-the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Commitment in respect of an Incremental Term Facility, Incremental Term Increase, Incremental Revolving Commitment Increase or Additional/Replacement Revolving CommitmentsLoans.
(d) Commitments in respect of Incremental Facilities Term Loans shall become Commitments and Loans, as applicable, under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, each Co-the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative Agent. Any Incremental Facility Amendment may provide for the issuance of additional letters of credit for the account of any Co-Borrower or the incurrence of additional swingline loans by any Co-Borrower pursuant to any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Initial Revolving Commitments; provided that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An Incremental Facility Term Loan may be provided, subject to the prior written consent of each Co-the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no each existing Lender shall have the right right, but not the obligation, to participate in any Incremental Facility Term Loan or, unless it agrees, shall to be obligated to provide any Term Loans pursuant thereto) or by any Additional Lender. Incremental Facilities). Any loan under an Incremental Facility Term Loans shall be a “Loan” for all purposes of this Agreement and the other Loan Documents, and any commitment under any Incremental Facility shall be a “CommitmentTerm Loans” for all purposes of this Agreement and the other Loan Documents. Any 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, in the reasonable opinion of the Administrative Agent and each Co-the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the Initial Revolving Maturity Date shall be reallocated from Lenders holding Initial Revolving Commitments to Lenders holding Additional/Replacement Revolving Commitments in accordance with the terms of such Incremental Facility Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Additional/Replacement Revolving Commitments, be deemed to be participation interests in respect of such Additional/Replacement Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly2.20. 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 and the issuance, increase in the amount, or extension of a Letter of Credit thereunderTerm Loan) pursuant to such Incremental Facility Amendment shall be subject to delivery of a Borrowing Request in accordance with Section 2.03 and the satisfaction of such conditions as the parties thereto shall agree and as required by this Section 2.202.20 and Section 4.02 (but otherwise subject to Section 1.06 to the extent applicable). Each Co-The Borrower will use the proceeds of the Incremental Term LoansLoans to finance Permitted Acquisitions and to pay any fees, costs and expenses incurred in connection therewith.
(e) Incremental Term IncreasesLoans may be provided by any existing Lender (in its sole discretion), Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments 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.
(eg) 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 Borrower and 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 sub-Classes, in each case on terms consistent with this Section 2.20.
(h) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Atlas Technical Consultants, Inc.)
Incremental Credit Extensions. (a) Finance The Borrower or any Guarantor may at any time or and from time to time on one or more occasions after the Effective Date, subject to the terms and conditions set forth herein, by written notice delivered to the Administrative Agent request (i) one or more additional Classes of term loans (each a “Incremental Term Facility”) and/or (ii) one or more additional term loans of the same Class of any existing Class of term loans (each a which may include Incremental Delayed Draw Term Loans) (the “Incremental Term Increase”), and the Co-Borrowers may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (i) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) and/or (ii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with any Incremental Term Facility, Incremental Term Increase and the Incremental Revolving Commitment Increases, the “Incremental FacilitiesLoans”); provided that that, subject to Section 1.08, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Facility Term Loan is made or effected, (x) no Event of Default (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transactionan Acquisition Transaction or other Investment not prohibited by the terms of this Agreement, no Specified Event of DefaultDefault under clause (a), (b), (h) or (i) of Section 7.01) shall have occurred and be continuing and (y) the representations and warranties set forth in the Loan Documents (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, customary specified representations and warranties and customary specified acquisition agreement representations and warranties) shall be true and correct in all material respects on and as of such date (provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respect as of such earlier date; provided further that, in each case, any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respect as of such date)would result therefrom. Notwithstanding anything to the contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities that can be incurred at any time Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such timetime (calculated in a manner consistent with the definition of “Incremental Cap”).
(b) Each Incremental Term Loan shall comply with the following clauses (A) through (F):
(A) except with respect to (I) the Maturity Carveout Amount and (II) Customary Bridge Loans, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans (without giving effect to any previous amortization payments or prepayments of the Term Loans),
(B) subject to clause (F), the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Term Lenders,
(C) (i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to a Junior Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower,
(D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Term Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except (i) to the extent permitted by clause (A) or (B) above or clause (E) or (F) below, (ii) as to pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption provisions and (iii) any funding conditions applicable to any Incremental Delayed Draw Term Facility), they shall either (I) reflect market terms and conditions (taken as a whole) at the time of incurrence of such Indebtedness (as determined by the Borrower in good faith) or (II) be reasonably satisfactory to the Administrative Agent; provided that, in any event, to the extent that any financial maintenance or other covenant is added for the benefit of the Additional Term Lenders under such Incremental Facility, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance or other covenant is (1) also added for the benefit of the Term Loans or any other then outstanding Loans or (2) only applicable after the Latest Maturity Date in effect at the time such Incremental Term Loans are incurred,
(E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Term Lenders. Each Incremental Facility Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Co-Borrowers Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.Cap, and
(F) with respect to any Incremental Term Loans funded after the Effective Date that (i) The Incremental Term Facilities (A) shall (1) rank equal or junior in right of payment are secured by a Lien on the Collateral that ranks pari passu with the Initial Liens securing the Term Loans, (2ii) if secured, be secured only by are incurred pursuant to the Collateral securing Free and Clear Incremental Amount (other than Incremental Term Loans incurred in reliance on the Secured Obligations and (3) only be guaranteed by the Loan PartiesGeneral Debt Basket Reallocated Amount), (Biii) shall not mature earlier than on or prior to the Initial first anniversary of the Term Maturity Date, (Civ) shall not have a shorter Weighted Average Life are incurred prior to Maturity than the remaining Initial Term Loansdate that is six months after the Effective Date, (Dv) shall have a maturity date are in the form of dollar-denominated broadly syndicated floating rate term B loans and (subject to clause vi) are not incurred or established in connection with any Permitted Acquisition or other permitted Investment (B))provided that the Borrower may, an amortization schedule (subject to clause (C))in its sole discretion, interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) and prepayment terms and premiums and other terms and conditions as determined by Finance and the Additional Term Lenders thereunder; provided that, for exclude any Class of Incremental Term Facility that ranks equal Loans from application of the MFN Protection to the extent such Class is in right an aggregate initial principal amount not exceeding the greater of payment with the Initial Term Loans (x) $245,000,000 and is secured by the Collateral on a pari passu basis with the Secured Obligations(y) 100% of LTM Consolidated EBITDA), in the event that the Effective Yield interest rate margins for any such Incremental Term Facility is Loan are greater than the Effective Yield Applicable Rates for the Initial Term Loans by more than 0.500.75% per annum, then the Effective Yield Applicable Rates for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield Applicable Rates for the Initial Term Loans is are equal to the Effective Yield interest rate margins for such Incremental Term Facility Loans minus 0.500.75% per annum (provided that the “LIBOR floor” MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to Term SOFR, for purposes of calculating the applicable to increase (if any) in the outstanding Initial Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be increased deemed to an amount not be the interest rate (calculated after giving effect to exceed any increases required pursuant to the “LIBOR floor” applicable to immediately succeeding proviso) of such Incremental Term Loans less the then applicable Term SOFR; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (w) original issue discount (“OID”), upfront fees (which shall be deemed, solely for purposes of this clause (w), to constitute like amounts of OID) or other fees payable by the Borrower or the applicable Guarantor to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (x) (1) with respect to the Term Loans, to the extent that Term SOFR for a three-month interest period on the closing date of the Incremental Facility prior Amendment is less than the “Term SOFR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that Term SOFR for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required, (y) arrangement, structuring, ticking, commitment, amendment, unused line or underwriting fees or other similar fees payable in connection with the Term Loans or such Incremental Term Loans, as applicable, consent fees for an amendment (in each case regardless of whether any such fees are paid to or shared in whole or in part with any lender) and any other fees not paid to all relevant lenders generally with respect to such Indebtedness, shall be excluded and (z) the Applicable Rate for the Term Loans and the interest rate margin for the Incremental Term Loans shall be deemed to include the credit spread or similar adjustment, if any, applicable to a one-month Term SOFR Borrowing; provided, further, that any increase in the Applicable Rate applicable to such Initial the Term Loans then outstanding), (E) shall not have the benefit of mandatory prepayment provisions that are more favorable due to the applicable lenders application or creditors than those imposition of an interest rate floor on any such Incremental Term Loans may, at the election of the Initial Term Loans (it being understood that any such Indebtedness that is secured on a pari passu basis by the Collateral with the Secured Obligations may participate on a pro rata basis or a less than a pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments in respect of the Initial Term Loans)Borrower, unless be effected through either (1) an increase in the Lenders of relevant interest rate floor applicable to the Initial Term Loans also receive the benefit of such more favorable terms or (2) any such provisions apply only after an increase in the Initial Term Maturity Date and (F) may otherwise have terms and conditions as agreed between Finance and the Additional Term Lenders providing any such Incremental Term Facility but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions Applicable Rate applicable to the Initial Term Loans (as determined by Holdings in good faith).
(ii) The Incremental Term Increases shall Loans; provided, further, that the MFN Protection may be treated waived at any time with the same as consent of the Required Class of Term Loans being increased (including Lenders with respect to the maturity date thereof), shall be considered to be part of the applicable Class of Term Loans being increased and shall be on the same terms applicable to the Class of Term Loans being increased (excluding upfront fees and customary arranger fees); provided that (i) if required to consummate the applicable Incremental Term Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect of any such Incremental Term Increase is to increase the Effective Yield of the Class of Term Loans being increased (as contemplated by the immediately preceding clause (i)), then such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions set forth in the proviso to Section 2.20(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunder.
(iii) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Revolving Commitments being increased and shall be on the same terms applicable to the Class of Revolving Commitments being increased (excluding upfront fees and customary arranger fees); provided that if required to consummate the applicable Incremental Revolving Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders).
(iv) The Additional/Replacement Revolving Commitments (and the Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) and commitment reduction and termination terms as determined by the Co-Borrowers and Additional Revolving Lenders providing such commitments and (D) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith)Loans.
(c) [Reserved].
(d) [Reserved].
(e) Each notice from any Co-the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Commitment Incremental Term Loans.
(f) Commitments in respect of an Incremental Term Facility, Incremental Term Increase, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments.
(d) Incremental Facilities Loans shall become Commitments and Loans, as applicable, under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdingsthe Borrower and any applicable Guarantor, each Co-Borrower, each Additional Lender and the Administrative Agent. Any Incremental Facility Amendment may agreeing to provide for the issuance of additional letters of credit for the account of any Co-Borrower or the incurrence of additional swingline loans by any Co-Borrower pursuant to any Incremental Revolving such Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Initial Revolving Commitments; (provided that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An Incremental Facility may be provided, subject to the prior written consent of each Co-Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facility or, unless it agrees, shall be obligated to provide any loans or commitments under any Incremental FacilitiesFacility unless it so agrees), if any, each Additional Term Lender, if any, and the Administrative Agent (such consent not to be unreasonably withheld or delayed). Any loan under an Incremental Facility Term Loans shall be a “Loan” for all purposes of this Agreement and the other Loan Documents, and any commitment under any Incremental Facility shall be a “Commitment” for all purposes of this Agreement and the other Loan Documents. Any 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, appropriate or advisable (including changing the amortization schedule or extending the call protection or other terms of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and each Co-the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the Initial Revolving Maturity Date shall be reallocated from Lenders holding Initial Revolving Commitments to Lenders holding Additional/Replacement Revolving Commitments in accordance with the terms of such Incremental Facility Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Additional/Replacement Revolving Commitments, be deemed to be participation interests in respect of such Additional/Replacement Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly2.20. 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 and the issuance, increase in the amount, or extension of a Letter of Credit thereunderLoan) pursuant to such Incremental Facility Amendment shall may be subject to delivery of a Borrowing Request in accordance with Section 2.03 and the satisfaction of such additional conditions as the parties thereto shall agree agree. The Borrower and as required by this Section 2.20. Each Co-Borrower will any Restricted Subsidiary may use the proceeds proceeds, if any, of the Incremental Term Loans, Incremental Term Increases, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments Loans for any purpose not prohibited by this Agreement.
(eg) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) Finance The Borrower may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (i) one or more additional Classes of term loans (each a “Incremental Term Facility”) and/or (ii) one or more additional or increases in term loans of the same Class of any existing Class of term loans loans, in each case, in Dollars or any other currency (each a the “Incremental Term IncreaseLoans”), and the Co-Borrowers may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (iii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) and/or or (iiiii) one or more additional Classes of Revolving Commitments revolving credit commitments (the “Additional/Replacement Incremental Revolving Commitments,” and, together with any the Incremental Term Facility, Incremental Term Increase Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that after giving effect that, subject to any Incremental Facility Amendment referred to below and Section 1.10, at the time that any such Incremental Facility Term Loan, Incremental Revolving Commitment Increase or Incremental Revolving Commitment is made or effectedeffected (and after giving pro forma effect thereto), except as set forth in the proviso to clause (xb) below, no Event of Default (or, in the case of the incurrence Incurrence or provision of any Incremental Facility in connection with a Limited Condition Transactionan Acquisition, no Specified Event of DefaultDefault under Section 7.01(a), (b), (h) or (i)) shall have occurred and be continuing continuing.
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Revolving Commitments and (y) the representations and warranties set forth in the Loan Documents (or, in the case of the incurrence or provision of any each Incremental Facility in connection with a Limited Condition Transaction, customary specified representations and warranties and customary specified acquisition agreement representations and warranties) Revolving Commitment Increase shall be true and correct in all material respects on and as of such date (provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respect as of such earlier date; provided further that, in each case, any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respect as of such date). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall is not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of less than $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Co-Borrowers and the Administrative Agent otherwise agree); provided it being understood that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities limit set forth above.
below) (i) The Incremental Term Facilities (A) shall (1) rank equal or junior and in right minimum increments of payment with the Initial Term Loans, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Term Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) and prepayment terms and premiums and other terms and conditions as determined by Finance and the Additional Term Lenders thereunder; provided that, for any Incremental Term Facility that ranks equal $1,000,000 in right of payment with the Initial Term Loans and is secured by the Collateral on a pari passu basis with the Secured Obligations, in the event that the Effective Yield for any such Incremental Term Facility is greater than the Effective Yield for the Initial Term Loans by more than 0.50% per annum, the Effective Yield for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for such Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Facility prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding), (E) shall not have the benefit of mandatory prepayment provisions that are more favorable to the applicable lenders or creditors than those of the Initial Term Loans (it being understood that any such Indebtedness that is secured on a pari passu basis by the Collateral with the Secured Obligations may participate on a pro rata basis or a less than a pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments in respect of the Initial Term Loans), unless (1) the Lenders of the Initial Term Loans also receive the benefit of such more favorable terms or (2) any such provisions apply only after the Initial Term Maturity Date and (F) may otherwise have terms and conditions as agreed between Finance and the Additional Term Lenders providing any such Incremental Term Facility but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(ii) The Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to the maturity date excess thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms applicable to the Class of Term Loans being increased (excluding upfront fees and customary arranger fees); provided that (i) if required to consummate the applicable Incremental Term Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect of any such Incremental Term Increase is to increase the Effective Yield of the Class of Term Loans being increased (as contemplated by the immediately preceding clause (i)), then such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions set forth in the proviso to Section 2.20(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunder.
(iii) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Revolving Commitments being increased and shall be on the same terms applicable to the Class of Revolving Commitments being increased (excluding upfront fees and customary arranger fees); provided that if required to consummate the applicable Incremental Revolving Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders).
(iv) The Additional/Replacement Revolving Commitments (and the Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) and commitment reduction and termination terms as determined by the Co-Borrowers and Additional Revolving Lenders providing such commitments and (D) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(c) Each notice from any Co-Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Commitment in respect of an Incremental Term Facility, Incremental Term Increase, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments.
(d) Incremental Facilities shall become Commitments and Loans, as applicable, under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, each Co-Borrower, each Additional Lender and the Administrative Agent. Any Incremental Facility Amendment may provide for the issuance of additional letters of credit for the account of any Co-Borrower or the incurrence of additional swingline loans by any Co-Borrower pursuant to any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Initial Revolving Commitments; provided that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An Incremental Facility may be provided, subject to the prior written consent of each Co-Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have proviso at the right to participate in any Incremental Facility or, unless it agrees, shall be obligated to provide any Incremental Facilities). Any loan under an Incremental Facility shall be a “Loan” for all purposes end of this Agreement and the other Loan Documents, and any commitment under any Incremental Facility shall be a “Commitment” for all purposes of this Agreement and the other Loan Documents. Any 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, in the reasonable opinion of the Administrative Agent and each Co-Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the Initial Revolving Maturity Date shall be reallocated from Lenders holding Initial Revolving Commitments to Lenders holding Additional/Replacement Revolving Commitments in accordance with the terms of such Incremental Facility Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Additional/Replacement Revolving Commitments, be deemed to be participation interests in respect of such Additional/Replacement Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly. 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 and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to delivery of a Borrowing Request in accordance with Section 2.03 and the satisfaction of such conditions as the parties thereto shall agree and as required by this Section 2.20. Each Co-Borrower will use the proceeds aggregate amount of the Incremental Term Loans, Incremental Term 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 Commitment Increases Commitments and Additional/Replacement Revolving other Incremental Commitments for any purpose not prohibited by then outstanding and Incurred under this Agreement.
clause (eB) Notwithstanding anything 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 contraryIncurrence of any such Incremental Facility, 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 Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to clause (B), the contrary.“Incremental Ratio Debt Amount” and, together with the Incremental Base Amount, the “Incremental Limit”); provided that
Appears in 1 contract
Sources: Credit Agreement (Weight Watchers International Inc)
Incremental Credit Extensions. (a) Finance The Borrower may at any time or from time to time on one or more occasions after the Effective Delayed Draw Term Commitment Expiration Date, by written notice delivered to the First Lien Administrative Agent request (i) one or more additional Classes of term loans (each each, a “First Lien Incremental Term Facility”) and/or (ii) one or more additional term loans of the same Class of any existing Class of term loans (each each, a “First Lien Incremental Term Increase”), and the Co-Borrowers may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request ) and/or (iii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an a “First Lien Incremental Revolving Commitment Increase”) and/or (ii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with any the First Lien Incremental Term Facility, Incremental Term Increase and the Incremental Revolving Commitment IncreasesLoans, the “First Lien Incremental Facilities”); provided that that, both at the time of any such request and after giving effect to the effectiveness of any First Lien Incremental Facility Amendment referred to below and at the time that any such First Lien Incremental Facility Term Loan or First Lien Incremental Revolving Commitment Increase is made or effected, (x) subject to Section 1.06 in the case of any Limited Condition Transaction, no Event of Default shall have occurred and be continuing (orexcept, in the case of the incurrence or provision of any First Lien Incremental Facility in connection with a Limited Condition Transaction, no Specified Event of DefaultDefault under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing and at the time of funding of such First Lien Incremental Facility), (y) the representations Borrower is in Pro Forma Compliance with the Financial Performance Covenant (for the avoidance of doubt, it is agreed that the determination of such ratio is subject to the Limited Condition Transaction provisions) and warranties set forth in (z) the Loan Documents (or, in the case Proved Reserves Coverage Ratio of the Borrower, calculated on a Pro Forma Basis after giving effect to the incurrence of the First Lien Incremental Facilities and any acquisition or provision of any Incremental Facility Investment consummated in connection with a therewith and all other appropriate pro forma adjustments (for the avoidance of doubt, it is agreed that the determination of such ratio is subject to the Limited Condition TransactionTransaction provisions), customary specified representations and warranties and customary specified acquisition agreement representations and warranties) shall be true and correct in all material respects on and as of such date (provided that, in each case, to not exceed 1.75:1.00 for the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respect as of such earlier date; provided further that, in each case, any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respect as of such date)most recently ended Test Period. Notwithstanding anything to the contrary herein, the aggregate principal amount of the First Lien Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time$50,000,000. Each First Lien Incremental Facility Term Loan shall be in a minimum principal amount of $5,000,000 2,000,000 and integral multiples of $1,000,000 500,000 in excess thereof (unless the Co-Borrowers Borrower and the First Lien Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 2,000,000 if such amount represents all the remaining availability under of the aggregate principal amount of First Lien Incremental Facilities Term Loans set forth above. Each First Lien Incremental Revolving Commitment Increase shall be in a minimum principal amount of $1,000,000 and integral multiples of $250,000 in excess thereof (unless the Borrower and the First Lien Administrative Agent otherwise agree); provided that such amount may be less than $1,000,000 if such amount represents all the remaining availability of the aggregate principal amount under the First Lien Incremental Revolving Commitment Increases set forth above.
(b) The First Lien Incremental Facilities (i) The Incremental Term Facilities (A) shall (1) rank equal or junior in right of payment with the Initial Term Loans, (2) if secured, shall be secured only by the Collateral securing the Secured First Lien Loan Document Obligations and (3) shall only be guaranteed by the Loan Parties, (Bii) in the case of any First Lien Incremental Term Loans, shall not mature earlier than the Initial Term Maturity Date, (C) Date and shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (Diii) [reserved], (iv) shall have a maturity date (subject to clause (B)), and an amortization schedule (subject to clause (C)ii) above), and interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) discounts and prepayment terms and premiums and other terms and conditions for the Incremental Term Loans as determined by Finance the Borrower and the First Lien Additional Term Lenders thereunder; provided that, in the event that the Effective Yield for any First Lien Incremental Term Facility that ranks is equal in right of payment with the Initial Term Loans and is secured by the Collateral on a pari passu basis with the Secured Obligations, in the event that the Effective Yield for any such Incremental Initial Term Facility Loans is greater than the Effective Yield for the Initial Term Loans Loans, by more than 0.50% per annum, then the Effective Yield for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is are equal to the Effective Yield for such the First Lien Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such First Lien Incremental Term Facility prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding), ) and (Ev) shall not have the benefit of mandatory prepayment provisions that are more favorable to the applicable lenders or creditors than those of the Initial Term Loans (it being understood that any such Indebtedness that is secured on a pari passu basis by the Collateral with the Secured Obligations may participate on a pro rata basis or a less than a pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments in respect of the Initial Term Loans), unless (1) the Lenders of the Initial Term Loans also receive the benefit of such more favorable terms or (2) any such provisions apply only after the Initial Term Maturity Date and (F) may otherwise have other terms and conditions as agreed between Finance the Borrower and the lenders providing any such First Lien Incremental Facilities; provided that in no event shall it be a condition to the effectiveness of, or borrowing under, any such First Lien Incremental Term Loans that any representation or warranty of any Loan Party set forth herein be true and correct, except and solely to the extent required by the First Lien Additional Term Lenders providing any such First Lien Incremental Term Facility but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(ii) The Loans. Any First Lien Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Term Loans being increased and Increase shall be on the same terms and pursuant to the same documentation applicable to the Class of Term Loans being increased (excluding upfront fees and customary arranger fees); provided that (i) if required to consummate the applicable . Any First Lien Incremental Term Increase, Facility shall be on terms and pursuant to documentation as determined by the pricing, interest rate margins, “most favored nation” (if any) provisions Borrowers and rate floors on the Class of First Lien Additional Term Loans being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the such First Lien Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect of any such Incremental Term Increase is to increase the Effective Yield of the Class of Term Loans being increased (as contemplated by the immediately preceding clause (i))Facility, then such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions restrictions and exceptions set forth in the proviso to Section 2.20(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunderabove.
(iiic) The First Lien Incremental Revolving Commitment Increases Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to the maturity date thereof), ) and shall be considered to be part of the Class of Revolving Commitments being increased and shall be on the same terms applicable to the Class of Revolving Commitments Loans being increased (excluding upfront fees and customary arranger fees); provided that it being understood that, if required to consummate the applicable a First Lien Incremental Revolving Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders lenders providing the First Lien Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders).
(iv) The Additional/Replacement ). Any First Lien Incremental Revolving Commitments (Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations excluding upfront fees and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront customary arranger fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) and commitment reduction and termination terms as determined by the Co-Borrowers and Additional Revolving Lenders providing such commitments and (D) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(cd) Each notice from any Co-the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant First Lien Incremental Term Loans or First Lien Incremental Revolving Commitment Increases.
(e) Commitments in respect of an First Lien Incremental Term FacilityIncreases, First Lien Incremental Term Increase, Facility and First Lien Incremental Revolving Commitment Increases shall become Commitments (or in the case of a First Lien Incremental Revolving Commitment Increase or Additional/Replacement to be provided by an existing Lender with a Revolving Commitments.
(dCommitment, an increase in such Lender’s applicable Revolving Commitment) Incremental Facilities shall become Commitments and Loans, as applicable, under this Agreement pursuant to an amendment (an “First Lien Incremental Facility Amendment”) to this Agreement and, as appropriate, the other First Lien Loan Documents, executed by Holdings, each Co-the Borrower, each Lender agreeing to provide such Commitment, if any, each First Lien Additional Lender Lender, if any, and the First Lien Administrative Agent. Any Incremental Facility Amendment may provide for the issuance of additional letters of credit for the account of any Co-Borrower or the incurrence of additional swingline loans by any Co-Borrower pursuant to any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Initial Revolving Commitments; provided that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An A First Lien Incremental Facility may be provided, subject to the prior written consent of each Co-the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any First Lien Incremental Facility Loans or, unless it agrees, shall be obligated to provide any First Lien Incremental Facilities)Loans) or by any First Lien Additional Lender. Any loan First Lien Incremental Term Increases and loans under an First Lien Incremental Facility Revolving Commitment Increases shall be a “Loan” for all purposes of this Agreement and the other Loan Documents, and any commitment under any Incremental Facility shall be a “Commitment” for all purposes of this Agreement and the other First Lien Loan Documents. Any The First Lien 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 First Lien Loan Documents as may be necessary, in the reasonable opinion of the First Lien Administrative Agent and each Co-the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an a First Lien Incremental Revolving Commitment Increase or Additional/Replacement Revolving CommitmentsIncrease, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the Initial Revolving Maturity Date shall be reallocated from Lenders holding Initial Revolving Commitments to Lenders holding Additional/Replacement Revolving Commitments in accordance with the terms of such Incremental Facility Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Additional/Replacement Revolving Commitments, be deemed to be participation interests in respect of such Additional/Replacement Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly. The effectiveness of any First Lien Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such First Lien Incremental Facility Amendment shall be subject to delivery of a Borrowing Request in accordance with Section 2.03 and the satisfaction of such conditions as the parties thereto shall agree and as required by this Section 2.20. Each Co-The Borrower will use the proceeds of the First Lien Incremental Term Loans, Incremental Term Increases, Loans and First Lien Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement.
(ef) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: First Lien Credit Agreement (Brigham Minerals, Inc.)
Incremental Credit Extensions. (a) Finance The Borrower may at any time or from time to time on one or more occasions after the Effective Closing Date, by written notice delivered to the Administrative Agent Agent, request (i) one or more additional Classes of term loans (each a “Incremental Term Facility”) and/or (ii) one hereunder or more additional term loans of the same Class of any existing Class of term loans hereunder (each a the “Incremental Term IncreaseLoans”), and the Co-Borrowers may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request ) and/or (iii) one or more increases in the amount of the Revolving Commitments of any Class hereunder (each such increase, an “Incremental Revolving Commitment Increase”) and/or (ii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with any the Incremental Term Facility, Incremental Term Increase and the Incremental Revolving Commitment IncreasesLoans, the “Incremental Facilities”); provided that after giving effect that, subject to any Incremental Facility Amendment referred to below and Section 1.06, at the time that any such Incremental Facility Term Loan or Incremental Revolving Commitment Increase is made or effectedeffected (and also immediately after giving effect thereto), (A) (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (or, y) in the case of Incremental Term Loans the incurrence or provision proceeds of any Incremental Facility in connection with which will be used to finance a Limited Condition TransactionTransaction in which an LCT Election has been made, no Specified Event of DefaultDefault under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing at the time that any such Incremental Term Loan is made and (yB) 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 the Article III and in any other Loan Documents (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, customary specified representations and warranties and customary specified acquisition agreement representations and warranties) Document shall be true and correct in all material respects on and as of such date (provided that, in each case, to the extent except that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respect as of such earlier date; provided further that, in each case, any representation and warranty that is qualified as to “materiality”, ” or “Material Adverse Effect” or similar language shall be true and correct in all respect respects) on and as of the date of the effectiveness of any Incremental Facility Amendment 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 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 the contrary herein, the aggregate principal amount of the Incremental 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 (x) $5,000,000 and in the case of Incremental Term Loans, or (y) $2,000,000 in the case of Incremental Revolving Commitment Increases and, in either case, integral multiples of $1,000,000 500,000 in excess thereof (unless the Co-Borrowers Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 either of the foregoing amounts if either such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.
(ib) The Incremental Term Facilities Loans (Aa) shall (1) rank equal or junior in right of payment with the Initial Term Loans, (2) if secured, shall be secured on a pari passu basis only by the Collateral securing the Secured Obligations and (3) shall only be guaranteed by the Loan Parties, (Bb) except with respect to an aggregate principal amount of Incremental Term Loans not greater than the Fixed Incremental Amount, shall not mature earlier than the Initial Term Maturity Date, (Cc) except with respect to an aggregate principal amount of Incremental Term Loans not greater than the Fixed Incremental Amount, shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (Dd) shall have a maturity date (subject to preceding clause (Bb)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) discounts and prepayment terms and premiums and other terms and conditions for the Incremental Term Loans as determined by Finance the Borrower and the Additional Term Lenders thereunder; provided that, for except with respect to (A) an aggregate principal amount of Incremental Term Loans not greater than the Fixed Incremental Amount, (B) any Incremental Term Facility that ranks equal in right of payment with the Initial Loans used to finance a Permitted Acquisition or other similar permitted Investment or (C) any Incremental Term Loans and is secured by that mature more than one (1) year after the Collateral on a pari passu basis with the Secured ObligationsTerm Maturity Date, in the event that the Effective Yield for any such Incremental Term Facility Loans incurred during the first twelve (12) months after the Closing Date is greater than the Effective Yield for the Initial Term Loans by more than 0.500.7550% per annum, then the Effective Yield for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for such the Incremental Term Facility Loans minus 0.500.7550% 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 Facility Loans prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding), ; (Ee) shall not have be prepaid with the benefit proceeds of voluntary or mandatory prepayment provisions that are more favorable events on a pro rata basis with other then outstanding Term Loans (unless the Lenders or Additional Term Lenders of such Incremental Term Loans elect to the applicable lenders or creditors than receive a lesser share of any such prepayment); and (f) may otherwise have terms and conditions different from those of the Initial Term Loans Loans; provided that, except with respect to matters contemplated by clauses (it being understood that a), (b), (c), (d) and (e) above but subject to clause (c) below, the terms and conditions of any such Indebtedness that is secured on Incremental Term Loans or any Incremental Revolving Commitment Increase, as applicable, shall not be materially more restrictive to Holdings, the Borrower and its Restricted Subsidiaries, when taken as a pari passu basis whole, as reasonably determined by the Collateral with Borrower in good faith, than the Secured Obligations may participate on a pro rata basis or a less than a pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments in respect terms of the Initial Term Loans or Revolving Loans), as applicable, unless (1) the Lenders of the Initial Term Loans such term is also receive added for the benefit of such more favorable terms any corresponding existing Term Loans or Revolving Loans, as applicable, without the consent of the Administrative Agent or any Lender being required, (2) any such provisions apply only after the Initial Term Latest Maturity Date and (F) may otherwise have terms and conditions as agreed between Finance and at the Additional Term Lenders providing any time of incurrence of such Incremental Term Facility but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable (3) such terms shall be reasonably satisfactory to the Initial Term Loans (as determined by Holdings in good faith)Administrative Agent.
(iic) The Incremental Term Increases Revolving Commitment Increase shall be treated the same as the Class of Term Loans being increased Revolving Commitments (including with respect to the maturity date thereof), ) and shall be considered to be part of the Class of Term Revolving Loans and Revolving Commitments (it being increased and shall be on the same terms applicable to the Class of Term Loans being increased (excluding upfront fees and customary arranger fees); provided that (i) understood that, if required to consummate the applicable an Incremental Term Revolving Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors and undrawn commitment fees on the Class of Term Loans being increased Revolving Commitments may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect of any such Incremental Term Increase is to increase the Effective Yield of the Class of Term Loans being increased (as contemplated by the immediately preceding clause (i)), then such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions set forth in the proviso to Section 2.20(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunder.
(iii) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Revolving Commitments being increased and shall be on the same terms applicable to the Class of Revolving Commitments being increased (excluding upfront fees and customary arranger fees); provided that if required to consummate the applicable Incremental Revolving Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders).
(iv) The Additional/Replacement Revolving Commitments (and the Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) and commitment reduction and termination terms as determined by the Co-Borrowers and Additional Revolving Lenders providing such commitments and (D) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(cd) Each notice from any Co-the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans or Incremental Revolving Commitment Increases.
(e) Commitments in respect of an Incremental Term Facility, Loans and Incremental Term Increase, Revolving Commitment Increases shall become Commitments (or in the case of an Incremental Revolving Commitment Increase or Additional/Replacement to be provided by an existing Lender with a Revolving Commitments.
(dCommitment, an increase in such Lender’s applicable Revolving Commitment) Incremental Facilities shall become Commitments and Loans, as applicable, under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, each Co-the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative Agent. Any Incremental Facility Amendment may provide for the issuance of additional letters of credit for the account of any Co-Borrower or the incurrence of additional swingline loans by any Co-Borrower pursuant to any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Initial Revolving Commitments; provided that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An Incremental Facility may be provided, subject to the prior written consent of each Co-the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facility or, unless it agrees, shall be obligated to provide any Loans pursuant thereto) or by any Additional Lender. Incremental Facilities). Any loan Term Loans and loans under an Incremental Facility Revolving Commitment Increases shall be a “Loan” for all purposes of this Agreement and the other Loan Documents, and any commitment under any Incremental Facility shall be a “Commitment” for all purposes of this Agreement and the other Loan Documents. Any 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, in the reasonable opinion of the Administrative Agent and each Co-the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving CommitmentsIncrease, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the Initial Revolving Maturity Date shall be reallocated from Lenders holding Initial Revolving Commitments to Lenders holding Additional/Replacement Revolving Commitments in accordance with the terms of such Incremental Facility Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Additional/Replacement Revolving Commitments, be deemed to be participation interests in respect of such Additional/Replacement Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly. 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 and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to delivery of a Borrowing Request in accordance with Section 2.03 and the satisfaction of such conditions as the parties thereto shall agree and as required by this Section 2.202.20 and Section 4.02 (but otherwise subject to Section 1.06 to the extent applicable). Each Co-The Borrower will use the proceeds of the Incremental Term Loans, Incremental Term Increases, Loans and Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement.
(ef) Incremental Facilities may be provided by any existing Lender (in its sole discretion), or, subject to (i) the consent of the Administrative Agent (not to be unreasonably withheld or delayed) if such consent would be required under Section 9.04 for assignments of Term Loans, Revolving Loans or Commitments, as applicable, to the relevant person and (ii) in the case of any Incremental Revolving Commitment Increase, each Issuing Bank and the Swing Line Lender, if such consent would be required under Section 9.04 for assignments of Revolving Loans and Revolving Commitments to the relevant Person.
(g) Each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(h) The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into (i) any Incremental Facility 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 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 Borrower) 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 sub-Classes, in each case on terms consistent with this Section 2.20.
(i) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Atlas Technical Consultants, Inc.)
Incremental Credit Extensions. (a) Finance The Borrower may at any time or from time to time on one or more occasions after the Effective Closing Date, by written notice delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more additional Classes tranches of term loans (each a the “Incremental New Term FacilityLoans”) and/or (ii) one or more additional term loans ), which may be of the same Facility and Class of as any existing Class of term loans Term Loans (each a “Incremental Term Loan Increase”), and a separate class of Term Loans (collectively with any Term Loan Increase, the Co-Borrowers may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (i) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment IncreaseNew Term Commitments”) and/or or a new revolving facility to be provided hereunder (ii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement New Revolving Commitments,” and, together with any Incremental New Term Facility, Incremental Term Increase and the Incremental Revolving Commitment IncreasesCommitments, the “Incremental FacilitiesNew Commitments”); provided that (i) both immediately before and immediately after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at (or, in the time that any such Incremental Facility is made case of a Permitted Acquisition or effectedpermitted Investment, on the date of the execution of (x) the definitive agreement in connection therewith and (y) any Commitment in respect of New Term Loans or New Revolving Commitments), no Event of Default (or, in the case of a Permitted Acquisition, a permitted Investment or the incurrence or provision First Amendment Transactions, no Specified Default) shall exist and (ii) both immediately before and immediately after the effectiveness of any Incremental Facility Amendment referred to below either (A) the condition precedent in connection with a Limited Condition Transaction, no Specified Event of DefaultSection 4.02(a) shall have occurred and be continuing and satisfied (yfor this purpose without regard to the exclusion of the applicability of this condition to Borrowings pursuant to Incremental Amendments by operation of the lead-in paragraph of Section 4.02) or (B) with respect to any incurrence of Loans pursuant to an Incremental Amendment the representations and warranties set forth in the Loan Documents (purpose of which is to finance a Permitted Acquisition or permitted Investment or, in if the case of Lenders party to such Incremental Amendment consent, the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, customary specified representations and warranties and customary specified acquisition agreement representations and warranties) Specified Representations shall be true and correct in all material respects on and respects. Each tranche of New Term Loans or New Revolving Commitments shall be in an aggregate principal amount that is not less than C$15,000,000 or US$15,000,000, as of such date applicable (provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall amount may be true and correct less than C$15,000,000 or US$15,000,000 if such lesser amount is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in all material respect as of such earlier date; provided further that, in each case, any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respect as of such datethe next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental 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 $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Co-Borrowers and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under New Term Loans or New Revolving Commitments, when added to the aggregate principal amount of any Incremental Facilities set forth aboveEquivalent Debt incurred or issued substantially simultaneously with the incurrence of such New Term Loans or New Revolving Commitments, shall not exceed the Available Incremental Amount at the time of incurrence or issuance thereof.
(b) The terms and provisions of New Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such New Commitments; provided, that:
(i) The Incremental Term Facilities (A) such New Commitments shall (1x) rank equal or junior pari passu in right of payment and security with the Initial Term Loans made on the Closing Date, the 2018 Incremental Term Loans and, the 2020 Refinancing Term Loans and the 2023 Refinancing Term Loans, (2y) if secured, may not be (I) secured only by the any assets other than Collateral securing the Secured Obligations and or (3II) only be guaranteed by the Loan Parties, any Person other than a Guarantor,
(Bii) (A) New Term Loans shall not (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness otherwise meeting the requirements of this clause (ii)) mature earlier than the Initial Term Latest Maturity Date, Date as in effect as of the applicable Incremental Facility Closing Date and (CB) New Revolving Commitments shall not mature and shall require no mandatory commitment reduction earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date,
(iii) New Term Loans shall (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness meeting the requirement of this clause (iii)) have a shorter Weighted Average Life to Maturity of no less than the remaining Initial Weighted Average Life to Maturity as then in effect for any Class of Term LoansLoans outstanding as of the applicable Incremental Facility Closing Date,
(iv) the currency (with the consent of the Administrative Agent, (D) shall have a maturity date (not to be unreasonably withheld, if other than Canadian Dollars or U.S. Dollars), discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clause clauses (B))ii) and (iii) above, an the amortization schedule schedule, in each case applicable to any New Term Loans or New Revolving Commitments shall be determined by the Borrower and the Lenders thereunder,
(subject to clause (C)), v) the interest rates rate (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate margin and floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) and prepayment terms and premiums and other terms and conditions as applicable to any New Term Loans or New Revolving Commitments will be determined by Finance the Borrower and the Additional Lenders providing such New Term Lenders thereunderLoans or New Revolving Commitments; provided that, for any if the All-In Yield applicable to such New Term Loans incurred prior to the first anniversary of the First Amendment Effective Date (or, with respect to the 2023 Refinancing Term Loans, the six-month anniversary of the Fourth Amendment Effective Date) pursuant to clause (a) of the Available Incremental Term Facility that ranks equal in right Amount exceeds (i) the All-In Yield of payment with the Initial Term Loans and is secured by and, the Collateral on a pari passu basis with the Secured Obligations, in the event that the Effective Yield for any such 2018 Incremental Term Facility is greater Loans or the 2023 Refinancing Term Loans, as applicable, of the same currency at such time by more than 50 basis points, then the Effective Yield interest rate margins for the Initial Term Loans by more than 0.50% per annumand, the Effective Yield for the Initial 2018 Incremental Term Loans or the 2023 Refinancing Term Loans, as applicable, of such same currency shall be increased to the extent necessary so that the Effective All-In Yield for the of such Initial Term Loans or, 2018 Incremental Term Loans or 2023 Refinancing Term Loans, as applicable, is equal to the Effective All-In Yield for of such New Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Initial Term Loan or, 2018 Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable Loan or 2023 Refinancing Term Loan, as applicable, due to the outstanding Initial application or imposition of a Eurocurrency RateTerm SOFR, Base Rate or Canadian Prime Rate or CDOR Rate floor on any New Term Loans Loan shall be increased to effected, at the Borrower’s option, (x) through an amount not to exceed the “LIBOR floor” increase in (or implementation of, as applicable) any Eurocurrency RateTerm SOFR, Base Rate or Canadian Prime Rate or CDOR Rate floor applicable to such Initial Term Loan or, 2018 Incremental Term Facility prior to any Loan or 2023 Refinancing Term Loan, as applicable, (y) through an increase in the Applicable Rate applicable to for such Initial Term Loans then outstanding)Loan or, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, or (Ez) shall not have any combination of (x) and (y) above,
(vi) the benefit of mandatory prepayment provisions that are more favorable to the applicable lenders or creditors than those of the Initial New Term Loans (it being understood that any such Indebtedness that is secured may provide for the ability to participate on a pari passu pro rata basis, less than pro rata basis by the Collateral with the Secured Obligations may participate or greater than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or a less than a pro rata basis (but not greater than a pro rata basisbasis except in the case of a prepayment of such New Term Loans under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder it being agreed that the Borrower may, at its option, elect to prepay or terminate earlier maturing tranches on a greater than pro rata basis,
(vii) the New Revolving Commitments shall contain borrowing, letter of credit issuance, repayment and termination of commitment procedures and other terms and conditions as determined by the Borrower and the Lenders providing such New Revolving Commitments,
(viii) [reserved], and
(ix) except (1) for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Term Loans (which shall be deemed to be reasonably satisfactory to the Administrative Agent), and (2) pricing, fees, rate floors, premiums, optional payment and redemption terms (subject to the preceding clauses (i) through (viii)), the terms and conditions applicable to such New Revolving Commitments, New Term Commitments and New Term Loans may be different from those of the Term Loans, to the extent (x) such differences are agreed upon by the Borrower and the Lenders in respect of such New Revolving Commitments or New Term Commitments, as applicable, and are reasonably acceptable to the Initial Administrative Agent or (y) reflect market terms and conditions at the time of incurrence or issuance thereof, as reasonably determined by the Borrower; provided that in the case of a Term Loans)Loan Increase, the terms, provisions and documentation of such Term Loan Increase shall be identical (other than with respect to upfront fees and OID and arrangement, structuring or similar fees payable in connection therewith) to the applicable Term Loans being increased, as existing on the respective Incremental Facility Closing Date; provided, further, that the terms of any New Term Commitments shall not include any financial maintenance covenant unless (1) such financial maintenance covenant shall also apply for the Lenders benefit of the Initial Term Commitments (and any Term Loans also receive made pursuant thereto); provided, further, that the terms of any New Revolving Commitment may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each Facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such more favorable terms New Revolving Commitment or (2) any covenant only applicable to, or for the benefit of, such provisions apply only after the Initial Term Maturity Date and (F) may otherwise have terms and conditions as agreed between Finance and the Additional Term Lenders providing any New Revolving Commitment, such Incremental Term Facility but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(ii) The Incremental Term Increases maintenance covenant shall be treated automatically included in this Agreement only for the same as benefit of each New Revolving Commitment hereunder (and not for the Class of Term Loans being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms applicable to the Class of Term Loans being increased (excluding upfront fees and customary arranger fees); provided that (i) if required to consummate the applicable Incremental Term Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect benefit of any such Incremental Term Increase is to increase the Effective Yield of the Class of Term Loans being increased (as contemplated by the immediately preceding clause (iother Facility hereunder)), then such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions set forth in the proviso to Section 2.20(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunder.
(iii) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Revolving Commitments being increased and shall be on the same terms applicable to the Class of Revolving Commitments being increased (excluding upfront fees and customary arranger fees); provided that if required to consummate the applicable Incremental Revolving Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders).
(iv) The Additional/Replacement Revolving Commitments (and the Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) and commitment reduction and termination terms as determined by the Co-Borrowers and Additional Revolving Lenders providing such commitments and (D) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(c) Each notice from any Co-the Borrower pursuant to this Section 2.20 shall set forth the requested amount and proposed terms of the relevant New Term Loans or New Revolving Commitment and the date on which the Borrower proposes that the same shall be effective (each, an “Incremental Amount Date”). New Term Loans or New Revolving Commitments may be made by any existing Lender (but no existing Lender (including the Administrative Agent in its capacity as an existing Lender) shall have any obligation to make a portion of any New Term Loan or New Revolving Commitments) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably conditioned, withheld or delayed) to such Lender’s or Additional Lender’s making such New Term Loans or New Revolving Commitments if such consent would be required under Section 10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide New Term Loans or New Revolving Commitments, unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such New Term Loans or New Revolving Commitments is an assignment of such New Term Loans or New Revolving Commitments to such Person. Commitments in respect of an Incremental New Term Facility, Incremental Term Increase, Incremental Loans or New Revolving Commitment Increase or Additional/Replacement Revolving Commitments.
(d) Incremental Facilities Commitments shall become Commitments and Loans, as applicable, under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdingsthe Borrower, each Co-Borrowerexisting Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, and the Administrative Agent. Any The Incremental Facility Amendment may provide for the issuance of additional letters of credit for the account of any Co-Borrower or the incurrence of additional swingline loans by any Co-Borrower pursuant to any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Initial Revolving Commitments; provided that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An Incremental Facility may be provided, subject to the prior written consent of each Co-Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facility or, unless it agrees, shall be obligated to provide any Incremental Facilities). Any loan under an Incremental Facility shall be a “Loan” for all purposes of this Agreement and the other Loan Documents, and any commitment under any Incremental Facility shall be a “Commitment” for all purposes of this Agreement and the other Loan Documents. Any 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 necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and each Co-the Borrower, to effect the provisions of this Section 2.20 (including2.14 and, in connection the case of any Incremental Amendment with an Incremental Revolving Commitment Increase or Additional/Replacement respect to New Revolving Commitments, any other terms, conditions and mechanics customary for a revolving facility of the type being provided pursuant to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the Initial Revolving Maturity Date shall be reallocated from Lenders holding Initial Revolving Commitments to Lenders holding Additional/Replacement Revolving Commitments in accordance with the terms of such Incremental Facility Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Additional/Replacement New Revolving Commitments, be deemed to be participation interests in respect of such Additional/Replacement Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly). The effectiveness of (and, in the case of any Incremental Facility Amendment and the occurrence of for New Term Loans, any credit event (including the making (but not the conversion or continuationCredit Extension under) of a Loan and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such any Incremental Facility Amendment shall be subject to delivery of a Borrowing Request in accordance with Section 2.03 and the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of such each of the conditions as the parties thereto Borrower and the Lenders providing such Commitment shall agree agree, including, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (a) (i) customary officer’s certificates and board resolutions and (ii) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent), (b) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as required appropriate, and (c) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents and/or the Guaranty as may be reasonably requested by this Section 2.20the Administrative Agent (including Mortgage amendments) in order to ensure that any New Commitment are provided with the benefit of the applicable Loan Documents. Each Co-The Borrower will shall use the proceeds (if any) of the Incremental New Term Loans, Incremental Term Increases, Incremental Revolving Commitment Increases and Additional/Replacement Loans or New Revolving Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to commit to provide any New Term Loans or New Revolving Commitments unless it so agrees.
(d) [reserved].
(e) Notwithstanding anything to the contrary, Any New Term Commitment may be designated a separate Class of Term Loans for all purposes of this Agreement. This Section 2.20 2.14 shall supersede any provisions in Section 2.18 2.05, Section 2.12, Section 2.13, Section 8.03 or Section 9.02 10.01 to the contrary.
Appears in 1 contract
Incremental Credit Extensions. (a) Finance The Initial Borrower may at any time or from time to time on one or more occasions after the Effective Restatement Date, by written notice delivered to the Administrative Agent Agent, request (i) one or more additional Classes of term loans (each a “Incremental Term Facility”) and/or (ii) one or more additional term loans Loans of the same Class of any term loans as an existing Class of term loans Term Loans (each a the “Incremental Term IncreaseLoans”), and the Co-Borrowers may at any time ) or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (iii) one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) and/or (ii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, and together with any the Incremental Term Facility, Incremental Term Increase and the Incremental Revolving Commitment IncreasesLoans, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that after giving effect that, subject to any Incremental Facility Amendment referred to below and at the time that any such Incremental Facility is made or effectedprovisions set forth in the remainder of this Section 2.14, (xi) no Event of Default (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, no Specified Event of Default) Default shall have occurred and be continuing and or would result therefrom (y) the representations and warranties set forth in the Loan Documents (or, except in the case of that the incurrence or provision proceeds of any Incremental Facility in connection with Facilities are being used to finance a Limited Condition Transaction, customary specified in which case the standard will be no Specified Event of Default shall have occurred and be continuing or would result therefrom on the LCA Test Date) and (ii) all representations and warranties and customary specified acquisition agreement representations and warranties) shall be true and correct in all material respects on and as of such date (provided thatunless qualified by materiality or a Material Adverse Effect, in each casewhich case such representation or warranty shall be true and correct in all respects) (except in the case that the proceeds of any Incremental Facility are being used to finance a Limited Condition Transaction, in which case only (x) the representations referred to in the definition of Certain Funds Representations in so far as they relate to the extent that Loan Parties at such time and (y) customary “SunGard” or “certain funds” representations and warranties specifically refer with respect to an earlier datethe Limited Condition Transaction, they shall be true and correct in all material respect as of such earlier date; provided further that, in each case, any representation and warranty that is respects (unless qualified as to “materiality”, “by materiality or a Material Adverse Effect” or similar language , in which case such representations shall be true and correct in all respect as respects).
(b) Each tranche of such date). Notwithstanding anything to the contrary herein, the Incremental Term Loans and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount of the Incremental Facilities that can be incurred at any time shall is not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of less than $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Co-Borrowers and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and, subject to calculation adjustments set forth in Section 1.09(f) with respect to any Incremental Facility being incurred in connection with a Limited Condition Transaction, the aggregate amount of (X) the Incremental Term Loans and Incremental 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)(ii) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Facilities set forth aboveBase Amount plus (B) an aggregate additional amount of Indebtedness, such that, after giving pro forma effect to such Incurrence (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and all Incremental Commitments and any other Indebtedness in the form of delayed draw term loan commitments Incurred at such time and in connection therewith were fully drawn) GBT and its Restricted Subsidiaries would be in compliance with (I) if such Indebtedness to be Incurred thereunder is intended to be a First Lien Obligation, a First Lien Net Leverage Ratio that is no greater than 3.00:1.00 (or, to the extent such Incremental Facility is incurred in connection with any acquisition or similar Investment not prohibited by this Agreement, the greater of 3.00:1.00 and the First Lien Net Leverage Ratio at the end of the most recently ended Test Period), (II) if such Indebtedness to be Incurred thereunder is intended to be secured by a Lien on the Collateral that is junior to the Lien securing the First Lien Obligations, a Secured Net Leverage Ratio that is no greater than 3.50:1.00 (or, to the extent such Incremental Facility is incurred in connection with any acquisition or similar Investment not prohibited by this Agreement, the greater of 3.50:1.00 and the Secured Net Leverage Ratio at the end of the most recently ended Test Period) and (III) if such Indebtedness to be Incurred thereunder is intended to be unsecured, at the Initial Borrower’s option, either (x) a Total Net Leverage Ratio that is no greater than 4.00:1.00 (or, to the extent such Incremental Facility is incurred in connection with any acquisition or similar Investment not prohibited by this Agreement, the greater of 4.00:1.00 and the Total Net Leverage Ratio at the end of the most recently ended Test Period) or (y) an Interest Coverage Ratio that is not less than 2.00:1.00 for the most recently ended Test Period (or, to the extent such Permitted Additional Debt is incurred in connection with any acquisition or similar Investment not prohibited by this Agreement, the lesser of 2.00:1.00 and the Interest Coverage Ratio at the end of the most recently ended Test Period).
(ic) (A) The Incremental Term Facilities Loans (Ai) shall (1x) rank equal pari passu or junior in right of payment with the Initial Restatement Date Term Loans, Loans and Term B-1 Loans and (2y) if secured, be secured only by all or a portion of the Collateral securing the Secured Obligations and shall be secured on a pari passu or junior lien basis with the Liens securing the Obligations, (3ii) only shall not be guaranteed by the Loan Partiesany Person that is not a Guarantor hereunder, (Biii) other than any Inside Maturity Loans, shall not mature earlier than the Initial Latest Maturity Date with respect to the Restatement Date Term Maturity DateLoans or the Term B-1 Loans, (Civ) other than any Inside Maturity Loans, shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Restatement Date Term Loans or the remaining Term B-1 Loans, (Dv) shall have a maturity date (subject to clause (Biii)), an amortization schedule (subject to clause (Civ)), interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) and prepayment terms and premiums and other terms and conditions as determined by Finance and the Additional Term Lenders thereunder; provided that, for any Incremental Term Facility that ranks equal in right of payment with the Initial Term Loans and is secured by the Collateral on a pari passu basis with the Secured Obligations, in the event that the Effective Yield for any such Incremental Term Facility is greater than the Effective Yield for the Initial Term Loans by more than 0.50% per annum, the Effective Yield for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for such Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Facility prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding), (E) shall not have the benefit of mandatory prepayment provisions that are more favorable to the applicable lenders or creditors than those of the Initial Term Loans (it being understood that any such Indebtedness that is secured on a pari passu basis by the Collateral with the Secured Obligations may participate on a pro rata basis or a less than a pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments in respect of the Initial Term Loans), unless (1) the Lenders of the Initial Term Loans also receive the benefit of such more favorable terms or (2) any such provisions apply only after the Initial Term Maturity Date and (F) may otherwise have terms and conditions as agreed between Finance and the Additional Term Lenders providing any such Incremental Term Facility but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(ii) The Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms applicable to the Class of Term Loans being increased (excluding upfront fees and customary arranger fees); provided that (i) if required to consummate the applicable Incremental Term Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect of any such Incremental Term Increase is to increase the Effective Yield of the Class of Term Loans being increased (as contemplated by the immediately preceding clause (i)), then such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions set forth in the proviso to Section 2.20(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunder.
(iii) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Revolving Commitments being increased and shall be on the same terms applicable to the Class of Revolving Commitments being increased (excluding upfront fees and customary arranger fees); provided that if required to consummate the applicable Incremental Revolving Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders).
(iv) The Additional/Replacement Revolving Commitments (and the Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, discounts and prepayment terms and premiums, financial covenants (if any) and commitment reduction and termination terms premiums for the Incremental Term Loans as determined by the Co-Borrowers Initial Borrower and Additional Revolving Lenders providing the lenders of the Incremental Term Loans; provided that in the event that the Effective Yield for any such commitments Incremental Facilities that are Qualifying Term Loans incurred in reliance on Section 2.14(b)(B) is greater than the Effective Yield for the Restatement Date Term Loans by more than 0.50% per annum, then the Applicable Rates for the Restatement Date Term Loans shall be increased to the extent necessary so that the Effective Yield for the Restatement Date Term Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.50% per annum; provided, further, that, unless otherwise agreed by the Initial Borrower in its sole discretion, that any increase in the Effective Yield to any Restatement Date Term Loans due to the application or imposition of a Base Rate floor or Term SOFR floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Term SOFR floor applicable to such Restatement Date Term Loans (this proviso, the “MFN Provision”); and (Dvi) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(c) Each notice different from any Co-Borrower pursuant to this Section 2.20 shall set forth the requested amount those of the relevant Commitment in respect of an Incremental Restatement Date Term Facility; provided that (x) except with respect to matters contemplated by clauses (iii), Incremental Term Increase(iv) and (v) above, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments.
(d) Incremental Facilities any differences shall become Commitments and Loans, as applicable, under this Agreement pursuant be reasonably satisfactory to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, each Co-Borrower, each Additional Lender and the Administrative Agent. Any Incremental Facility Amendment may provide for , (y) the issuance of additional letters of credit for the account of any Co-Borrower or the incurrence of additional swingline loans by any Co-Borrower pursuant to documentation governing any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Term Loans under the Initial Revolving Commitments; provided that no Issuing Bank shall be required to act may include any Previously Absent Financial Maintenance Covenant so long as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An Incremental Facility may be provided, subject to the prior written consent of each Co-Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facility or, unless it agrees, shall be obligated to provide any Incremental Facilities). Any loan under an Incremental Facility shall be a “Loan” for all purposes of this Agreement and the other Loan Documents, and any commitment under any Incremental Facility shall be a “Commitment” for all purposes of this Agreement and the other Loan Documents. Any 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, in the reasonable opinion of the Administrative Agent shall have been given prompt written notice thereof and each Co-Borrower, this Agreement is amended to effect include such Previously Absent Financial Maintenance Covenant for the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent benefit of each Issuing Bank, participations in Letters of Credit expiring on or after the Initial Revolving Maturity Date shall be reallocated from Lenders holding Initial Revolving Commitments to Lenders holding Additional/Replacement Revolving Commitments in accordance with the terms of such Incremental Facility AmendmentFacility; provided, further, however, that such participation interests shall, upon receipt thereof by if the relevant Lenders holding Additional/Replacement Revolving Commitments, be deemed to be participation interests in respect of such Additional/Replacement Revolving Commitments and the terms of such participation interests (including, without limitationapplicable Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant, the commission applicable thereto) Previously Absent Financial Maintenance Covenant shall be adjusted accordingly. The effectiveness automatically included in this agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any Incremental Facility Amendment term loan facility hereunder) and (z) the occurrence of documentation governing any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to delivery of a Borrowing Request in accordance with Section 2.03 and the satisfaction of such conditions as the parties thereto shall agree and as required by this Section 2.20. Each Co-Borrower will use the proceeds of the Incremental Term Loans, Incremental Term Increases, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this AgreementLoans may include covenants or other provisions applicable only to periods after the Latest Maturity Date at such time.
(e) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Amendment No. 1 (Global Business Travel Group, Inc.)
Incremental Credit Extensions. (a) Finance The Borrower may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (i) one or more additional Classes of term loans (each a “Incremental Term Facility”) and/or (ii) one or more additional or increases in term loans of the same Class of any existing Class of term loans loans, in each case, in Dollars or any other currency (each a the “Incremental Term IncreaseLoans”), and the Co-Borrowers may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (iii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) and/or or (iiiii) one or more additional Classes of Revolving Commitments revolving credit commitments (the “Additional/Replacement Incremental Revolving Commitments,” and, together with any the Incremental Term Facility, Incremental Term Increase Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that after giving effect that, subject to any Incremental Facility Amendment referred to below and Section 1.10, at the time that any such Incremental Facility Term Loan, Incremental Revolving Commitment Increase or Incremental Revolving Commitment is made or effectedeffected (and after giving pro forma effect thereto), except as set forth in the proviso to clause (xb) below, no Event of Default (or, in the case of the incurrence 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 Specified Event of DefaultDefault under Section 7.01(a), (b), (h) or (i)) shall have occurred and be continuing continuing.
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Revolving Commitments and (y) the representations and warranties set forth in the Loan Documents (or, in the case of the incurrence or provision of any each Incremental Facility in connection with a Limited Condition Transaction, customary specified representations and warranties and customary specified acquisition agreement representations and warranties) Revolving Commitment Increase shall be true and correct in all material respects on and as of such date (provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respect as of such earlier date; provided further that, in each case, any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respect as of such date). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall is not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of less than $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Co-Borrowers and the Administrative Agent otherwise agree); provided it being understood that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities limit set forth above.
below) (i) The Incremental Term Facilities (A) shall (1) rank equal or junior and in right minimum increments of payment with the Initial Term Loans, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Term Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) and prepayment terms and premiums and other terms and conditions as determined by Finance and the Additional Term Lenders thereunder; provided that, for any Incremental Term Facility that ranks equal $1,000,000 in right of payment with the Initial Term Loans and is secured by the Collateral on a pari passu basis with the Secured Obligations, in the event that the Effective Yield for any such Incremental Term Facility is greater than the Effective Yield for the Initial Term Loans by more than 0.50% per annum, the Effective Yield for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for such Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Facility prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding), (E) shall not have the benefit of mandatory prepayment provisions that are more favorable to the applicable lenders or creditors than those of the Initial Term Loans (it being understood that any such Indebtedness that is secured on a pari passu basis by the Collateral with the Secured Obligations may participate on a pro rata basis or a less than a pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments in respect of the Initial Term Loans), unless (1) the Lenders of the Initial Term Loans also receive the benefit of such more favorable terms or (2) any such provisions apply only after the Initial Term Maturity Date and (F) may otherwise have terms and conditions as agreed between Finance and the Additional Term Lenders providing any such Incremental Term Facility but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(ii) The Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to the maturity date excess thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms applicable to the Class of Term Loans being increased (excluding upfront fees and customary arranger fees); provided that (i) if required to consummate the applicable Incremental Term Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect of any such Incremental Term Increase is to increase the Effective Yield of the Class of Term Loans being increased (as contemplated by the immediately preceding clause (i)), then such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions set forth in the proviso to Section 2.20(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunder.
(iii) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Revolving Commitments being increased and shall be on the same terms applicable to the Class of Revolving Commitments being increased (excluding upfront fees and customary arranger fees); provided that if required to consummate the applicable Incremental Revolving Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders).
(iv) The Additional/Replacement Revolving Commitments (and the Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) and commitment reduction and termination terms as determined by the Co-Borrowers and Additional Revolving Lenders providing such commitments and (D) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(c) Each notice from any Co-Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Commitment in respect of an Incremental Term Facility, Incremental Term Increase, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments.
(d) Incremental Facilities shall become Commitments and Loans, as applicable, under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, each Co-Borrower, each Additional Lender and the Administrative Agent. Any Incremental Facility Amendment may provide for the issuance of additional letters of credit for the account of any Co-Borrower or the incurrence of additional swingline loans by any Co-Borrower pursuant to any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Initial Revolving Commitments; provided that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An Incremental Facility may be provided, subject to the prior written consent of each Co-Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have proviso at the right to participate in any Incremental Facility or, unless it agrees, shall be obligated to provide any Incremental Facilities). Any loan under an Incremental Facility shall be a “Loan” for all purposes end of this Agreement and the other Loan Documents, and any commitment under any Incremental Facility shall be a “Commitment” for all purposes of this Agreement and the other Loan Documents. Any 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, in the reasonable opinion of the Administrative Agent and each Co-Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the Initial Revolving Maturity Date shall be reallocated from Lenders holding Initial Revolving Commitments to Lenders holding Additional/Replacement Revolving Commitments in accordance with the terms of such Incremental Facility Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Additional/Replacement Revolving Commitments, be deemed to be participation interests in respect of such Additional/Replacement Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly. 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 and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to delivery of a Borrowing Request in accordance with Section 2.03 and the satisfaction of such conditions as the parties thereto shall agree and as required by this Section 2.20. Each Co-Borrower will use the proceeds aggregate amount of the Incremental Term Loans, Incremental Term Increases, Incremental Revolving Commitment Increases and Additional/Replacement the Incremental Revolving Commitments for any purpose (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.20(b), shall not prohibited by this Agreement.exceed, as of the date of Incurrence of such Indebtedness or commitments, the Incremental Base Amount. provided that
(ei) Notwithstanding anything Incremental Term Loans may be Incurred without regard to the contraryIncremental 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 shall supersede any provisions 2.20(b), to the extent that the Net Cash Proceeds from such Incremental Term Loans on the date of Incurrence of such Incremental Term Loans (or substantially concurrently therewith) are used to either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 2.18 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 9.02 2.11(g)(ii) (and any such Incremental Term Loans shall be deemed to have been Incurred pursuant to this proviso), and
(ii) Incremental Revolving Commitments may be provided without regard to the contraryIncremental 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), to the extent 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 accordance with Section 2.11(g)(ii) by an amount equal to the aggregate amount of Incremental Revolving Commitments so provided (and any such Incremental Revolving Commitments shall be deemed to have been Incurred pursuant to this proviso).
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Ww International, Inc.)
Incremental Credit Extensions. (a) Finance The Initial Borrower may at any time or from time to time on one or more occasions after the Effective Restatement Date, by written notice delivered to the Administrative Agent Agent, request (i) one or more additional Classes of term loans (each a “Incremental Term Facility”) and/or (ii) one or more additional term loans Loans of the same Class of any term loans as an existing Class of term loans Term Loans (each a the “Incremental Term IncreaseLoans”), and the Co-Borrowers may at any time ) or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (iii) one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) and/or (ii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, and together with any the Incremental Term Facility, Incremental Term Increase and the Incremental Revolving Commitment IncreasesLoans, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that after giving effect that, subject to any Incremental Facility Amendment referred to below and at the time that any such Incremental Facility is made or effectedprovisions set forth in the remainder of this Section 2.14, (xi) no Event of Default (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, no Specified Event of Default) Default shall have occurred and be continuing and or would result therefrom (y) the representations and warranties set forth in the Loan Documents (or, except in the case of that the incurrence or provision proceeds of any Incremental Facility in connection with Facilities are being used to finance a Limited Condition Transaction, customary specified in which case the standard will be no Specified Event of Default shall have occurred and be continuing or would result therefrom on the LCA Test Date) and (ii) all representations and warranties and customary specified acquisition agreement representations and warranties) shall be true and correct in all material respects on and as of such date (provided thatunless qualified by materiality or a Material Adverse Effect, in each casewhich case such representation or warranty shall be true and correct in all respects) (except in the case that the proceeds of any Incremental Facility are being used to finance a Limited Condition Transaction, in which case only (x) the representations referred to in the definition of Certain Funds Representations in so far as they relate to the extent that Loan Parties at such time and (y) customary “SunGard” or “certain funds” representations and warranties specifically refer with respect to an earlier datethe Limited Condition Transaction, they shall be true and correct in all material respect as of such earlier date; provided further that, in each case, any representation and warranty that is respects (unless qualified as to “materiality”, “by materiality or a Material Adverse Effect” or similar language , in which case such representations shall be true and correct in all respect as respects).
(b) Each tranche of such date). Notwithstanding anything to the contrary herein, the Incremental Term Loans and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount of the Incremental Facilities that can be incurred at any time shall is not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of less than $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Co-Borrowers and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and, subject to calculation adjustments set forth in Section 1.09(f) with respect to any Incremental Facility being incurred in connection with a Limited Condition Transaction, the aggregate amount of (X) the Incremental Term Loans and Incremental 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)(ii) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Facilities set forth aboveBase Amount plus (B) an aggregate additional amount of Indebtedness, such that, after giving pro forma effect to such Incurrence (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and all Incremental Commitments and any other Indebtedness in the form of delayed draw term loan commitments Incurred at such time and in connection therewith were fully drawn) GBT and its Restricted Subsidiaries would be in compliance with (I) if such Indebtedness to be Incurred thereunder is intended to be a First Lien Obligation, a First Lien Net Leverage Ratio that is no greater than 3.00:1.00 (or, to the extent such Incremental Facility is incurred in connection with any acquisition or similar Investment not prohibited by this Agreement, the greater of 3.00:1.00 and the First Lien Net Leverage Ratio at the end of the most recently ended Test Period), (II) if such Indebtedness to be Incurred thereunder is intended to be secured by a Lien on the Collateral that is junior to the Lien securing the First Lien Obligations, a Secured Net Leverage Ratio that is no greater than 3.50:1.00 (or, to the extent such Incremental Facility is incurred in connection with any acquisition or similar Investment not prohibited by this Agreement, the greater of 3.50:1.00 and the Secured Net Leverage Ratio at the end of the most recently ended Test Period) and (III) if such Indebtedness to be Incurred thereunder is intended to be unsecured, at the Initial Borrower’s option, either (x) a Total Net Leverage Ratio that is no greater than 4.00:1.00 (or, to the extent such Incremental Facility is incurred in connection with any acquisition or similar Investment not prohibited by this Agreement, the greater of 4.00:1.00 and the Total Net Leverage Ratio at the end of the most recently ended Test Period) or (y) an Interest Coverage Ratio that is not less than 2.00:1.00 for the most recently ended Test Period (or, to the extent such Permitted Additional Debt is incurred in connection with any acquisition or similar Investment not prohibited by this Agreement, the lesser of 2.00:1.00 and the Interest Coverage Ratio at the end of the most recently ended Test Period).
(ic) (A) The Incremental Term Facilities Loans (Ai) shall (1x) rank equal pari passu or junior in right of payment with the Initial Restatement Date Term Loans, Loans and (2y) if secured, be secured only by all or a portion of the Collateral securing the Secured Obligations and shall be secured on a pari passu or junior lien basis with the Liens securing the Obligations, (3ii) only shall not be guaranteed by the Loan Partiesany Person that is not a Guarantor hereunder, (Biii) other than any Inside Maturity Loans, shall not mature earlier than the Initial Latest Maturity Date with respect to the Restatement Date Term Maturity DateLoans, (Civ) other than any Inside Maturity Loans, shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Restatement Date Term Loans, (Dv) shall have a maturity date (subject to clause (Biii)), an amortization schedule (subject to clause (Civ)), interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any) and prepayment terms and premiums and other terms and conditions as determined by Finance and the Additional Term Lenders thereunder; provided that, for any Incremental Term Facility that ranks equal in right of payment with the Initial Term Loans and is secured by the Collateral on a pari passu basis with the Secured Obligations, in the event that the Effective Yield for any such Incremental Term Facility is greater than the Effective Yield for the Initial Term Loans by more than 0.50% per annum, the Effective Yield for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for such Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Facility prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding), (E) shall not have the benefit of mandatory prepayment provisions that are more favorable to the applicable lenders or creditors than those of the Initial Term Loans (it being understood that any such Indebtedness that is secured on a pari passu basis by the Collateral with the Secured Obligations may participate on a pro rata basis or a less than a pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments in respect of the Initial Term Loans), unless (1) the Lenders of the Initial Term Loans also receive the benefit of such more favorable terms or (2) any such provisions apply only after the Initial Term Maturity Date and (F) may otherwise have terms and conditions as agreed between Finance and the Additional Term Lenders providing any such Incremental Term Facility but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(ii) The Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms applicable to the Class of Term Loans being increased (excluding upfront fees and customary arranger fees); provided that (i) if required to consummate the applicable Incremental Term Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect of any such Incremental Term Increase is to increase the Effective Yield of the Class of Term Loans being increased (as contemplated by the immediately preceding clause (i)), then such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions set forth in the proviso to Section 2.20(b)(i) as if such Incremental Term Increase was an Incremental Term Facility incurred hereunder.
(iii) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Revolving Commitments being increased and shall be on the same terms applicable to the Class of Revolving Commitments being increased (excluding upfront fees and customary arranger fees); provided that if required to consummate the applicable Incremental Revolving Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders).
(iv) The Additional/Replacement Revolving Commitments (and the Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, discounts and prepayment terms and premiums, financial covenants (if any) and commitment reduction and termination terms premiums for the Incremental Term Loans as determined by the Co-Borrowers Initial Borrower and Additional Revolving Lenders providing the lenders of the Incremental Term Loans; provided that in the event that the Effective Yield for any such commitments Incremental Facilities that are Qualifying Term Loans incurred in reliance on Section 2.14(b)(B) is greater than the Effective Yield for the Restatement Date Term Loans by more than 0.50% per annum, then the Applicable Rates for the Restatement Date Term Loans shall be increased to the extent necessary so that the Effective Yield for the Restatement Date Term Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.50% per annum; provided, further, that, unless otherwise agreed by the Initial Borrower in its sole discretion, that any increase in the Effective Yield to any Restatement Date Term Loans due to the application or imposition of a Base Rate floor or Term SOFR floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Term SOFR floor applicable to such Restatement Date Term Loans (this proviso, the “MFN Provision”); and (Dvi) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(c) Each notice different from any Co-Borrower pursuant to this Section 2.20 shall set forth the requested amount those of the relevant Commitment in respect of an Incremental Restatement Date Term Facility; provided that (x) except with respect to matters contemplated by clauses (iii), Incremental Term Increase(iv) and (v) above, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments.
(d) Incremental Facilities any differences shall become Commitments and Loans, as applicable, under this Agreement pursuant be reasonably satisfactory to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, each Co-Borrower, each Additional Lender and the Administrative Agent. Any Incremental Facility Amendment may provide for , (y) the issuance of additional letters of credit for the account of any Co-Borrower or the incurrence of additional swingline loans by any Co-Borrower pursuant to documentation governing any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Term Loans under the Initial Revolving Commitments; provided that no Issuing Bank shall be required to act may include any Previously Absent Financial Maintenance Covenant so long as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An Incremental Facility may be provided, subject to the prior written consent of each Co-Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facility or, unless it agrees, shall be obligated to provide any Incremental Facilities). Any loan under an Incremental Facility shall be a “Loan” for all purposes of this Agreement and the other Loan Documents, and any commitment under any Incremental Facility shall be a “Commitment” for all purposes of this Agreement and the other Loan Documents. Any 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, in the reasonable opinion of the Administrative Agent shall have been given prompt written notice thereof and each Co-Borrower, this Agreement is amended to effect include such Previously Absent Financial Maintenance Covenant for the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent benefit of each Issuing Bank, participations in Letters of Credit expiring on or after the Initial Revolving Maturity Date shall be reallocated from Lenders holding Initial Revolving Commitments to Lenders holding Additional/Replacement Revolving Commitments in accordance with the terms of such Incremental Facility AmendmentFacility; provided, further, however, that such participation interests shall, upon receipt thereof by if the relevant Lenders holding Additional/Replacement Revolving Commitments, be deemed to be participation interests in respect of such Additional/Replacement Revolving Commitments and the terms of such participation interests (including, without limitationapplicable Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant, the commission applicable thereto) Previously Absent Financial Maintenance Covenant shall be adjusted accordingly. The effectiveness automatically included in this agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any Incremental Facility Amendment term loan facility hereunder) and (z) the occurrence of documentation governing any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to delivery of a Borrowing Request in accordance with Section 2.03 and the satisfaction of such conditions as the parties thereto shall agree and as required by this Section 2.20. Each Co-Borrower will use the proceeds of the Incremental Term Loans, Incremental Term Increases, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this AgreementLoans may include covenants or other provisions applicable only to periods after the Latest Maturity Date at such time.
(e) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Global Business Travel Group, Inc.)
Incremental Credit Extensions. (a) Finance The Borrower may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent Closing Date request (i) one or more additional Classes Tranches of term loans (each a “Incremental Term Facility”) and/or (ii) one or more additional term loans of the same Class of any existing Class of term loans (each a “Incremental Term Increase”), and the Co-Borrowers may at any time or from time to time on one or more occasions after the Effective Date, by written notice delivered to the Administrative Agent request (i) one or more increases in to an existing Tranche of Loans (the amount of commitments thereof, the Revolving Commitments of any Class (each “Incremental Loan Commitment”, the loans thereunder, the “Incremental Loans” and a Lender making such increaseloans, an “Incremental Revolving Commitment Increase”) and/or (ii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with any Incremental Term Facility, Incremental Term Increase and the Incremental Revolving Commitment Increases, the “Incremental FacilitiesLender”); provided that after giving effect to that:
(i) the aggregate amount of Incremental Facilities Incurred during the term of this Agreement shall not exceed the Maximum Incremental Facilities Amount;
(ii) no Person shall be an obligor under any Incremental Facility Amendment referred to below 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 Facility Loan is made or effected(and after giving effect thereto), (x) no Event of Default (or, in shall exist; provided that if the case of the incurrence or provision proceeds of any Incremental Facility Loans are intended to be used to finance a Permitted Acquisition or other Investment permitted hereunder, in connection with each case that is a Limited Condition Transaction, then the requirement of no Specified 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) shall have occurred upon the effectiveness of any Incremental Document and be continuing at the time that any such Incremental Loan is made (and (y) after giving effect thereto), the representations and warranties set forth made by any Loan Party in or pursuant to the Loan Documents (or, in the case of the incurrence or provision of any Incremental Facility in connection with a Limited Condition Transaction, customary specified representations and warranties and customary specified acquisition agreement representations and warranties) shall be true and correct in all material respects on and as of such date as if made on and as of such date (provided that, in each case, except to the extent that already qualified by materiality, in which case, such representations and warranties specifically refer to an earlier date, they shall be true and correct in all respects), 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 respect respects as of such earlier date; provided further thatdate (except to the extent already qualified by materiality, in each which case, any representation such representations and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language warranties shall be true and correct in all respect as of such date). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental 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 $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Co-Borrowers and the Administrative Agent otherwise agreerespects); provided that such amount 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 requirements set forth in this clause (iv) may be less than $5,000,000 if such amount represents all limited by the remaining availability under applicable Incremental Lenders to the aggregate principal amount of Specified Representations;
(v) Incremental Loans may be denominated in Dollars, Euros, Pounds Sterling or any other Available Currency;
(vi) Incremental Facilities set forth above.
(i) The Incremental Term Facilities (A) shall (1) rank equal or junior no greater than pari passu in right of payment and no greater than pari passu in right of security with the Initial Term Loans, (2) if secured, be ; provided that any Incremental Facility that is secured only by the Collateral securing on a junior basis to the Secured Obligations and or that is set forth in an Incremental Agreement shall be subject to an Acceptable Intercreditor Agreement;
(3vii) only be guaranteed by the Loan Partiesother than Customary Bridge Facilities, (B) Incremental Loans shall not mature earlier than the Initial Term Loan Maturity Date, (C) Date and shall not have a shorter Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans, Loans (Dexcept by virtue of prepayment of the Initial Loans prior to such date of determination);
(viii) shall have a maturity date (subject to clause (B)vii) above, (A) the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(ix) 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 (y) that are also made for the benefit of the Lenders under the Initial Loans (which will be documented in an amortization schedule amendment to this Agreement requiring only the consent of the Borrower and the Administrative Agent)) shall (subject A) be substantially identical to, or no more favorable (taken as a whole) to clause the lenders providing such Incremental Facility than, the Initial Loans in this Agreement and each other Loan Document (C)as determined by the Borrower in good faith), interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if anyB) and prepayment terms and premiums and other reflect market terms and conditions (as determined by Finance 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 Additional Term Lenders thereunderIncremental Lenders; provided that, for that with respect to any Incremental Term Facility that ranks equal Document in right respect of payment with Incremental Loans in the Initial Term Loans form of a broadly syndicated “term B facility” denominated in Dollars and is secured by the Collateral on a pari passu basis with the Secured ObligationsInitial Loans, if the All-In Yield in the event that the Effective Yield for any respect of such Incremental Term Facility is greater than Loans exceeds the Effective All-In Yield for in respect of the Initial Term Loans by more than 0.50% per annum%, the Effective Yield for Applicable Rate of the Initial Term Loans shall be increased to the extent necessary so adjusted such that the Effective All-In Yield for of the Initial Term Loans is equal to equals the Effective All-In Yield for of such Incremental Term Facility Loans minus 0.50% per annum (provided that %, effective upon the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to making of such Incremental Term Facility prior Loans; provided further that any amendments to any increase in the Applicable Rate applicable in respect of the Initial Loans that become effective subsequent to the Closing Date but prior to the time such Initial Term Incremental Loans then outstanding), (Eare borrowed shall also be included in such calculations; provided further that this Section 2.15(a)(x) shall not have the benefit of mandatory prepayment provisions that are more favorable apply to the applicable lenders MFN Exceptions;
(xi) Incremental Loans may participate (i) on a pro rata basis, greater than pro rata basis or creditors less than those pro rata basis in any voluntary prepayments of the Initial Term Loans Loans, and (it being understood that any such Indebtedness that is secured on a pari passu basis by the Collateral with the Secured Obligations may participate ii) on a pro rata basis or a less than a pro rata basis (but not and on a greater than a pro rata basis) in any mandatory repayments or prepayments in respect of the Initial Term Loans), unless (1) the Lenders of the Initial Term Loans also receive the benefit of such more favorable terms or (2) any such provisions apply only after the Initial Term Maturity Date and (F) may otherwise have terms and conditions as agreed between Finance and the Additional Term Lenders providing any such Incremental Term Facility but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith).
(ii) The Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including basis with respect to the maturity date thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms applicable to the Class of Term Loans being increased (excluding upfront fees and customary arranger fees); provided that (i) if required to consummate the applicable Incremental Term Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) if the effect mandatory prepayments of any such Incremental Term Increase is Loans with the proceeds of Credit Agreement Refinancing Indebtedness) with respect to increase any mandatory prepayments of Incremental Loans; and
(xii) the Effective Yield of the Class of Term Loans being increased Borrower may appoint any Person (as contemplated by the immediately preceding clause or Persons) to arrange any Incremental Facility and provide such arranger (i)), then or arrangers) any titles to such Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment provisions set forth in the proviso to Section 2.20(b)(i) Facility as if such Incremental Term Increase was an Incremental Term Facility incurred hereunderit deems appropriate.
(iiib) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to the maturity date thereof), shall be considered to be part of the Class of Revolving Commitments being increased and shall be on the same terms applicable to the Class of Revolving Commitments being increased (excluding upfront fees and customary arranger fees); provided that if required to consummate the applicable Incremental Revolving Commitment Increase, the pricing, interest rate margins, “most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the Additional Lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders).
(iv) The Additional/Replacement Revolving Commitments (and the Revolving Loans made thereunder) (A) shall (1) rank equal or junior in right of payment with the Initial Revolving Commitments, (2) if secured, be secured only by the Collateral securing the Secured Obligations and (3) only be guaranteed by the Loan Parties, (B) shall not mature earlier than the Initial Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Maturity Date, (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) and commitment reduction and termination terms as determined by the Co-Borrowers and Additional Revolving Lenders providing such commitments and (D) may otherwise have terms and conditions as agreed between the Co-Borrowers and the Additional Revolving Lenders providing any such Additional/Replacement Revolving Commitments but without any financial covenants or event of default provisions that are more restrictive, when taken as a whole, than the covenants and event of default provisions applicable to the Initial Term Loans (as determined by Holdings in good faith)[Reserved].
(c) Each notice from Incremental Loans may be made by any Co-Borrower pursuant 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 2.20 2.15; provided that the Administrative Agent shall set forth the requested amount have consented (not to be unreasonably withheld or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 13.4 for an assignment of the relevant Commitment in respect of an Loans to such Lender or Additional Lender. Incremental Term Facility, Incremental Term Increase, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments.
(d) Incremental Facilities Loan Commitments shall become Commitments and Loans, as applicable, under this Agreement pursuant to an amendment (an “Incremental Facility 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, each Co-the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender Lender, if any, and the Administrative Agent. Any The Incremental Facility Amendment may provide for the issuance of additional letters of credit for the account of any Co-Borrower or the incurrence of additional swingline loans by any Co-Borrower pursuant to any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Initial Revolving Commitments; provided that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. An Incremental Facility may be provided, subject to the prior written consent of each Co-Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facility or, unless it agrees, shall be obligated to provide any Incremental Facilities). Any loan under an Incremental Facility shall be a “Loan” for all purposes of this Agreement and the other Loan Documents, and any commitment under any Incremental Facility shall be a “Commitment” for all purposes of this Agreement and the other Loan Documents. Any Incremental Facility Amendment Document 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 necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and each Co-the Borrower, to effect the provisions of this Section 2.20 (including2.15, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitmentsincluding amendments that do not adversely affect the Lenders, which may include amendments to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving LendersSections 2.4(a) and 5.1(b). In addition, if so provided in the relevant Incremental Facility Amendment and with the consent of each Issuing Bank, participations in Letters of Credit expiring on or after the Initial Revolving Maturity Date shall be reallocated from Lenders holding Initial Revolving Commitments to Lenders holding Additional/Replacement Revolving Commitments in accordance with the terms of such Incremental Facility Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Additional/Replacement Revolving Commitments, be deemed to be participation interests in respect of such Additional/Replacement Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly. 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 and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to delivery of a Borrowing Request in accordance with Section 2.03 and the satisfaction of such conditions as the parties thereto shall agree and as required by this Section 2.20. Each Co-Borrower will may use the proceeds of the Incremental Term Loans, Incremental Term Increases, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments Loans for any purpose not prohibited by this Agreement.
(d) [Reserved].
(e) Notwithstanding anything to the contrary, this This Section 2.20 2.15 shall supersede any provisions in Section 2.18 2.8 or Section 9.02 13.12 to the contraryextent they conflict with this Section 2.15.
Appears in 1 contract
Sources: Second Lien Credit and Guaranty Agreement (Informatica Inc.)