Increase in Commitments. (a) The Borrower may, by written notice to the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). (b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors. (d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing. (e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan. (f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 3 contracts
Sources: Credit Agreement (DigitalOcean Holdings, Inc.), Second Amended and Restated Credit Agreement (DigitalOcean Holdings, Inc.), Second Amended and Restated Credit Agreement (DigitalOcean Holdings, Inc.)
Increase in Commitments. (a) The Borrower may, by written notice to the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity DateAgent, request on to effect one or more occasions, up to three increases in the aggregate, aggregate amount of the Commitments (the “Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)Commitments”) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 an amount such that the Senior Secured Leverage Ratio, as of the date of the effectiveness of any such Incremental Commitments, would be equal to or less than 3.50:1.00, calculated on a Pro Forma Basis (treating any such proposed Incremental Commitments as fully drawn and the Loans thereunder outstanding) (provided that any proceeds of such Incremental Commitments and any proceeds of any substantially simultaneous incurrence of Indebtedness shall not be netted from Consolidated Senior Secured Indebtedness for purposes of calculating the Senior Secured Leverage Ratio) plus (ii) $100,000,000 (less the aggregate principal amount of all loans incurred after the Second Amendment and Restatement Date pursuant to Section 2.18 of the Term Loan Facility (or other “incremental” provisions of the Term Loan Facility). For the avoidance of doubt, the Borrower may establish Incremental Commitments under this Section 2.20 in reliance on Section 2.20(a)(i) to the extent permitted prior to using Section 2.20(a)(ii). Notwithstanding the foregoing, if the Borrower has not included in such notice to the Administrative Agent for any Incremental Commitments an unlimited amountexplicit election to establish such Incremental Commitments pursuant to Section 2.20(a)(i) or Section 2.20(a)(ii), so long asthen the Borrower shall be deemed to have elected to establish such Incremental Commitments under Section 2.20(a)(i) to the extent such Incremental Commitments are permitted to be incurred under such clause. Upon the receipt of such request by the Agent, the Agent shall deliver a copy thereof to each Lender. Such notice shall set forth the amount of the requested Incremental Commitments (which shall be (i) in the case minimum increments of this clause $1,000,000 and a minimum amount of $25,000,000 or (ii), after giving pro forma effect ) equal to the Borrowing of such remaining amount available for Incremental Term Loan Commitments) and the application of proceeds therefrom date on which such increase is requested to become effective. The Incremental Commitments may be made by any existing Lender (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of provided that no existing Lender shall have any obligation to provide any Incremental Term Loans, Commitment and after giving pro forma effect none of the Borrower or its Affiliates has any obligation to offer any Permitted Acquisition, Investment existing Lender the right to provide any Incremental Commitment) or by any other bank or other transaction consummated in connection therewithfinancial institution that is willing to provide Incremental Commitments (any such other bank or other financial institution, an “Additional Lender”), the Leverage Ratio shall not exceed 2.50:1.00; provided, provided that each Incremental Term Additional Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion Agent, the Swingline Lender and the Issuing Lender (which approvals shall not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Additional Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and all such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan its Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, and/or its status as a Lender hereunder.
(ib) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon that the effectiveness of Agent may take any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents all actions as may be reasonably necessary or appropriateto ensure that, after giving effect to any Incremental Commitments, the outstanding Revolving Loans (if any) are held by the Lenders in accordance with their new Applicable Percentages. This may be accomplished at the reasonable opinion discretion of the Administrative Agent and Agent, following consultation with the Borrower, (i) by requiring the outstanding Revolving Loans to effectuate be prepaid with the provisions proceeds of a new Borrowing, (ii) by causing existing Lenders to assign portions of their outstanding Revolving Loans to Lenders providing the Incremental Commitments and the Additional Lenders, or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties heretobut otherwise without premium or penalty.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment Commitments or addition of a new Lender shall become effective under this Section 2.15 unless 2.20 unless, (i) no Default shall have occurred or be continuing or would exist after giving effect to such increase, (ii) on the date of such effectivenessincrease, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (iiiii) upon reasonable request by the Administrative Agent, the Agent shall have received legal opinions, opinions and board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, Date under Sections 4.01(g) and 4.01(k)(i) and (iiiiv) on a Pro Forma Basis, after giving effect to such Incremental Commitments and any Acquisition to be consummated simultaneously with such increase, the Credit Parties and their Subsidiaries would Borrower shall be in compliance on a pro forma basis with Section 6.01 (assuming all it being understood that for purposes of determining compliance with this clause (iv), the Commitments shall be deemed to be fully drawn).
(d) Any Incremental Commitments established hereunder shall have terms identical to the Commitments existing immediately prior to the establishment of such Incremental Term Loan Commitments were fully drawn Commitments; provided that any commitment, arrangement, upfront or similar fees may be agreed among the Borrower, the Lenders and without “netting” the cash proceeds of any Additional Lenders providing such Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such BorrowingCommitments.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default Commitments shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate become Commitments under this Agreement pursuant to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects amendment (except for those representations and warranties that are conditioned by an “materiality” or “material adverse effectIncremental Amendment”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of and, as appropriate, the Borrower and (y) other Facility Documents, executed by the Specified RepresentationsBorrower, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence each Lender agreeing to provide such Incremental Term LoansCommitment, each Additional Lender and the Agent. If applicableThe Incremental Amendment may, without the consent of any other Agents or Lenders, effect such amendments to this Agreement and the other Facility Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent shall have received a Notice and the Borrower to effect the provisions of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loanthis Section 2.20.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take This Section 2.20 shall supersede any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included provisions in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, 2.17 or 10.02 to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanscontrary.
Appears in 3 contracts
Sources: Fourth Amendment and Restatement Agreement (Kindred Healthcare, Inc), Abl Credit Agreement (Kindred Healthcare, Inc), Abl Credit Agreement (Kindred Healthcare, Inc)
Increase in Commitments. (a) The At any time following the Closing Date, the Borrower may, may by written notice to the Administrative Agent at any time after elect to request the Closing Date and prior to the Term Loan Maturity Date, request on establishment of:
(i) one or more occasionsincremental term loan commitments (any such incremental term loan commitment, up to three in the aggregate, an “Incremental Term Loan Commitments from Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term LendersLoan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may not include any existing Lender (each of which may be entitled to agree elect or decline to participate decline, in its sole discretion discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if so offered made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the opportunity to do soproceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) in an aggregate principal amount not to exceed each Incremental Loan Commitment (and the sum Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(iF) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause each Incremental Term Loan (iithe terms of which shall be set forth in a Lender joinder agreement), after giving pro forma effect such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Borrowing of Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of Borrower, but will not in any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already event have a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the shorter weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the Closing latest Termination Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the any prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the or any Revolving Loan and except as provided above, all other terms and conditions applicable to the any Incremental Term Loans hereunder Loan shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.;
(cG) All in the case of each Incremental Term Loans shall rank pari passu in rights Revolving Credit Increase (the terms of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and which shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.Lender joinder agreement):
Appears in 2 contracts
Sources: Credit Agreement (Cree Inc), Credit Agreement (Cree Inc)
Increase in Commitments. (a) The Borrower may, by written Upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments denominated in any currency to be incurred by the Borrower and/or any U.S. Subsidiary Guarantor (each, an “Incremental Facility”) pursuant to any Incremental Joinder; provided that after giving effect to any such addition, the aggregate amount of all additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.16(a) shall be incurred in compliance with the requirements of the Incremental Cap, tested at the time of incurrence 104
(b) Any loans made in respect of any time after such additional Term Commitments (the Closing Date and “Incremental Term Loans”) may be made, at the option of the Borrower, either by (i) increasing the Initial Term Loans or the 2022 Incremental Term B-2 Loans with the same terms (including pricing) as the existing Initial Term Loans or the 2022 Incremental Term B-2 Loans, as applicable, or (ii) creating a new tranche of terms loans (an “Incremental Term Loan Class”); provided that any Incremental Term Loan Class (A) shall not mature prior to the Term Loan stated Maturity Date, request on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect Date applicable to the Borrowing latest maturing Class of Term Loans on the date of incurrence of such Incremental Term Loan and Loans, (B) the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds Weighted Average Life to Maturity of any Incremental Term Loan Class shall be no less than the Weighted Average Life to Maturity of such latest maturing Class of Term Loans and (C) any Incremental Term Loans may participate on a pro rata basis, a less than pro rata basis (or, solely as compared to any later maturing Class of Term Loans, greater than pro rata basis) in any mandatory prepayments (but on a pro rata basis, greater than pro rata basis or a less than pro rata basis in any voluntary prepayments) with the then outstanding Term Loans; provided that clauses (A) and after giving pro forma effect (B) above shall not apply to (X) any Permitted Acquisitioncustomary bridge loans so long as any loans, Investment notes, securities or other transaction consummated Indebtedness which exchanged for or otherwise replace such bridge loans satisfies (or will satisfy at the time of incurrence or rollover) the requirements of such clauses and (Y) Incremental Facilities with an aggregate outstanding principal amount not in connection therewithexcess of $350,000,000.
(c) Any such additional Revolving Credit Commitments may be made by (x) establishing one or more additional Classes of revolving credit commitments (an “Incremental Revolving Facility”), ; provided the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans such Incremental Revolving Facility shall be no earlier than the Term Loan Maturity Date and final maturity date of the Initial Revolving Credit Facility, (ii) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the weighted average life to final maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity date of the Closing Date Term Loans, Initial Revolving Credit Facility and provided, further, (iii) any Incremental Revolving Facility may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro basis) in any reduction or termination as compared to earlier maturing Revolving Credit Commitments or (y) increasing any Class of Revolving Credit Commitments (the “Incremental Revolving Credit Commitments”) with the same terms as such existing Class of Revolving Credit Commitments (it being understood that, if required to consummate an Incremental Revolving Facility, the Initial Yield pricing, interest rate margins, rate floors and undrawn fees on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect Revolving Credit Facility being increased may be increased for Term Loans that are Eurodollar Loans plus (B) one-quarter all Revolving Credit Lenders of the amount of such Revolving Credit Facility being increased, but additional upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically or similar fees may be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable payable to the Lenders making participating in the Incremental Revolving Credit Commitments without any requirement to pay such Other amounts to any existing Revolving Credit Lenders).
(d) The Borrower may invite any Lender or any additional Eligible Assignees to become Term LoansLenders or Revolving Credit Lenders, as applicable, pursuant to a commitment increase and joinder agreement (each, an “Incremental Joinder”). No Lender will be obligated to provide all or any portion of any Incremental Facility and the determination to provide such commitment shall be within the sole and absolute discretion of such Lender. Any failure by a Lender to respond to any such invitation shall not be deemed an acceptance or agreement to provide such Incremental Facility.
(e) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, the existing Lenders Administrative Agent and the Borrower shall be entitled to determine the benefit effective date (the “Incremental Effective Date”) and the final allocations of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption AgreementCommitments. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Borrower and the lenders providing such Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each Facility of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence final allocation thereof and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect Effective Date. As a condition precedent to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriateaddition, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromsuch increase, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein in Article 5 and in the other Loan Documents shall be are true and correct in all material respects (except for those representations that any representation and warranties warranty that are conditioned by is qualified as to “materiality” or “material adverse effect”, which Material Adverse Effect” shall be true and correct in all respectsrespects as so qualified) on and as of such date to the same extent as though made on and as of that dateIncremental Effective Date, except to the extent that such representations and warranties specifically relate refer to an earlier date, in which case such representations and warranties they shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition and (iB) no Event of Default under Section 8.01(aexists after giving effect to such addition (or, in the case incurred to fund a Permitted Acquisition, no Specified Event of Default exists after giving effect to such addition); provided that notwithstanding anything to the 105
(f) or On each Incremental Effective Date, (i) exists each Lender or would result from Eligible Assignee which is providing an Incremental Term Loan Class (A) shall become a “Term Lender” for all purposes of this Agreement and the incurrence other Loan Documents, and (B) shall make an Incremental Term Loan to the Borrower or the applicable Subsidiary Guarantor in a principal amount equal to such additional Term Commitment, and such Incremental Term Loan shall be deemed a “Term Loan” for all purposes of this Agreement and the other Loan Documents and (ii) each Lender or Eligible Assignee which is providing an Incremental Revolving Credit Commitment shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents, with a Revolving Credit Commitment of the applicable Class.
(g) The interest rate applicable to any Incremental Term Loans will be determined by the Borrower and the lenders providing such Incremental Term Loans; provided that (i) in the case of any such Incremental Term Loans denominated in Dollars that are secured by the Collateral on a pari passu basis with the Initial Term Loans in right of payment and with respect to security (other than customary bridge loans) with a final maturity date that is less than 24 months after the Initial Term Loan Maturity Date, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In- Rate in respect of the Initial Term Loans unless the Applicable Margin (and/or, as provided in the proviso below, the Base Rate floor or Term SOFR floor) with respect to the Initial Term Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum (it being agreed that, the relative rate differentials in any pricing grid specified in the Applicable Margin shall continue to be maintained), provided that, unless otherwise agreed by the Borrower in its sole discretion, that any increase in All-In-Rate to any Initial Term Loan due to the application or imposition of an 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 Initial Term Loan and (ii) in the representations case of any such Incremental Term Loans denominated in Dollars that are secured by the Collateral on a pari passu basis with the 2022 Incremental Term B-2 Loans in right of payment and warranties with respect to security (other than customary bridge loans) with a final maturity date that is less than 24 months after the 2022 Incremental Term B-2 Loan Maturity Date, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the 2022 Incremental Term B-2 Loans unless the Applicable Margin (and/or, as provided in the proviso below, the Base Rate floor or Term SOFR floor) with respect to the 2022 Incremental Term B-2 Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum (it being agreed that, the relative rate differentials in any pricing grid specified in the Applicable Margin shall continue to be maintained), provided that, unless otherwise agreed by the Borrower in its sole discretion, that any increase in All-In-Rate to any 2022 Incremental Term B-2 Loan due to the application or imposition of an Base Rate floor or Term SOFR floor on any such Indebtedness shall be limited effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Term SOFR floor applicable to such 2022 Incremental Term B-2 Loan.
(xh) Any Incremental Facility, if secured, may be secured only by the representation and warranty Collateral (provided that, in the case of any Incremental Facility that the Loans incurred is funded into Escrow pursuant to this Agreement are senior Indebtedness of customary escrow arrangements, such Incremental Facility may be secured by the Borrower applicable funds and related assets held in Escrow (yand the proceeds thereof) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at until the time of the incurrence release from Escrow of such Incremental Term Loans. If applicablefunds (and may not be secured by any other assets prior to such release)) and rank pari passu or junior with respect to security with the Facilities (and if secured, subject to an Acceptable Intercreditor Agreement (which may be effective (or entered into) only immediately after such release from Escrow referred to herein)) and, if guaranteed, will not be guaranteed by an entity which is not (or does not become) a Loan Party.
(i) Except as otherwise specified above, the Administrative Agent shall have received a Notice of Borrowing in respect other terms of any Incremental Term Loans by the date and time required hereunder Facility (including with respect to pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption terms and provisions), shall be on terms and pursuant to documentation to be determined between the applicable Type of Loan.Borrower and the lenders providing such Incremental Facility (and for the 106
(fj) Each The proceeds of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as Incremental Facility may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and used by the Borrower agrees that Section 3.02 shall apply to and its Subsidiaries for working capital and other general corporate purposes, including the financing of permitted acquisitions and other Investments and any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required other use not prohibited by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loansthis Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Dun & Bradstreet Holdings, Inc.), Credit Agreement (Dun & Bradstreet Holdings, Inc.)
Increase in Commitments. (a) The Borrower may, by written notice to the Administrative Agent at At any time after the Closing Date and prior to the Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and then be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and continuing, AMB LP may request a one-time increase in the other Loan Documents aggregate amount of the Commitments (subject to (iii) below), either by designating an Eligible Bank not theretofore a Bank to become a Bank (such designation to be effective only with the prior written consent of the Administrative Agent, which consent will not be unreasonably withheld) and/or by agreeing with an existing Bank or Banks that such Bank’s Commitment shall be true increased. Upon execution and correct delivery by AMB LP and such Bank or other Eligible Bank of an instrument in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date form reasonably satisfactory to the same extent as though made on and as of that dateAdministrative Agent, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties existing Bank shall have been true a Commitment as therein set forth or such Eligible Bank shall become a Bank with a Commitment as therein set forth and correct in all material respects (except for those representations the rights and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as obligations of a Bank with such earlier datea Commitment hereunder; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition :
(i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence AMB LP shall provide prompt notice of such Incremental Term Loansincrease to the Administrative Agent, and who shall promptly notify the Banks;
(ii) the representations Administrative Agent, the Hong Kong Dollars Agent (in the event the increased Commitment involves Hong Kong Dollars), the Singapore Dollars Agent (in the event the increased Commitment involves Singapore Dollars), the Canadian Administrative Agent (in the event the increased Commitment involves Canadian Dollar Tranche B), and warranties the Borrowers shall be limited to have agreed on (xa) the representation increase and warranty that apportionment of the Loans incurred applicable Currency Commitments and, if applicable, (b) the terms and conditions of one or more Supplemental Tranches; and
(iii) the amount of such one time increase does not cause the Facility Amount to exceed $750,000,000. Upon any increase in the aggregate amount of the Commitments pursuant to this Agreement are senior Indebtedness Section 2.15(a), within five (5) Business Days (in the case of any Base Rate Loans or Canadian Base Rate Loans then outstanding) or at the end of the Borrower and then-current Interest Period with respect thereto (y) in the Specified Representationscase of any Euro-Dollar Loans then outstanding (other than Canadian Base Rate Loans)), which as applicable, each Bank’s Pro Rata Share shall be true recalculated to reflect such increase in the Commitments and correct both at the time of signing outstanding principal balance of the relevant acquisition Loans shall be reallocated among the Banks such that the outstanding principal amount of Loans owed to each Bank shall be equal to such Bank’s Pro Rata Share (as recalculated). All payments, repayments and other disbursements of funds by the Administrative Agent to Banks shall thereupon and, at all times thereafter be made in accordance with each Bank’s recalculated Pro Rata Share.
(b) This Section 2.15 shall supersede any provisions in Sections 10.5 or similar 10.6 to the contrary.
(c) If any Bank becomes an Eligible Bank with respect to any Alternate Currency, it shall, at its sole discretion, provide written notice of such event to the Administrative Agent and use its best efforts to make a Currency Commitment with respect to such Alternate Currency. Promptly following such notice and agreement and at the time of the incurrence to provide such Incremental Term Loans. If applicableCurrency Commitment, the Administrative Agent shall have received notify and provide Borrowers and each Bank with a Notice replacement Schedule 2.1 listing the name of Borrowing the applicable Bank and the increase in respect of any Incremental Term Loans by the date and time required hereunder Currency Commitment with respect to such Alternate Currency. Upon any increase in the aggregate amount of the Currency Commitment with respect to any Alternate Currency pursuant to this Section 2.15(c), within five (5) Business Days, each applicable Bank’s Pro Rata Share shall be recalculated to reflect such increase and the outstanding principal balance of the applicable Type of Loan.
(f) Each of Loans shall be reallocated among the parties hereto hereby agrees applicable Banks such that the Administrative Agent mayoutstanding principal amount of such Loans owed to each such Bank shall be equal to such Bank’s Pro Rata Share (as recalculated). All applicable payments, with the Borrower’s prior written consent, take any repayments and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing disbursements of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required funds by the Administrative Agent to effect the foregoing. In additioneach applicable Bank shall thereupon and, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to at all times thereafter be made after the making of in accordance with such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansBank’s recalculated Pro Rata Share.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Amb Property Corp), Revolving Credit Agreement (Amb Property Lp)
Increase in Commitments. (a) The Borrower maySo long as no Default or Event of Default has occurred and is continuing or would result therefrom, by written upon notice to the Administrative Agent Agent, at any time after the Closing Date and prior to the Term Loan Maturity Date, the Borrower may request on one Additional Term B Commitments or more occasions, up to three in the aggregate, Incremental Term Loan Additional Revolving Credit Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of it being understood and agreed that (i) $50,000,000 plus at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) an unlimited amountif the Borrower makes such election, so long asthe provisions of this Section 2.14 shall be read in a manner that permits such election to be implemented; provided that the Borrower is only permitted to implement four additional commitments under this Section 2.14; provided further that (i) after giving effect to any such addition, the aggregate amount of Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $200,000,000, plus in the case of this clause (ii)an Additional Revolving Credit Commitment that serves to effectively extend the maturity of the Revolving Credit Facility, after giving pro forma effect an amount equal to the Borrowing of such Incremental Term Loan and reduction in the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000)Revolving Credit Facility, (ii) the date on which any such Incremental Term Loan Commitments are requested to become effective addition shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof (which shall not provided that such amount may be less than 15 days nor more than 60 days after $10,000,000 if such amount represents all remaining availability under the date aggregate limit in respect of such noticeAdditional Term B Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Additional Term B Loans shall be no earlier than the Term Loan Maturity Date and for the Term B Loans, (iiiv) the weighted average life to maturity of any Other the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term B Loans, (v) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Facility, and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to such Maturity Date and such Additional Revolving Credit Commitment shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility, (vi) no Lender shall be required to participate in the Additional Term B Commitments or the Additional Revolving Credit Commitments, (vii) the interest rate and amortization schedule applicable to the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof; provided that in the event that the interest margins applicable to any such Additional Term B Commitments is greater than the interest margins for the Term B Facility by more than 25 basis points, then the interest margins for the Term B Facility shall be increased to the extent necessary so that the interest margins for such Additional Term B Commitments are no more than 25 basis points greater than the interest margins for the Term B Facility; provided, further, that, if in determining the Initial Yield on applicable interest rate margins for such Other Additional Term Loans exceeds by more than 0.50% B Commitments and the sum of Term B Facility, (A) the margin then in effect for Term Loans that are Eurodollar Loans plus original issue discount (B“OID”) one-quarter of the amount of such or upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans fees (which shall be increased deemed to constitute like amounts of OID) payable by the amount any “LIBOR floor” applicable Borrower to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other under the Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower B Facility or any of its Subsidiaries, Additional Term B Commitments in the amount of such upfront fee divided by the lesser of initial primary syndication thereof shall be included (A) the average with OID being equated to interest based on assumed four-year life to maturity of such Other Term Loans and maturity), (B) four. The other terms customary arrangement or commitment fees payable to any of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent Arrangers (or their respective affiliates) in connection with the terms Term B Facility or to one or more arrangers (or their Affiliates) of any Additional Term B Commitments shall be excluded, and (C) if such Additional Term B Commitments include an interest rate floor greater than the interest rate floor applicable to the Term Loans hereunder B Facility, such increased amount shall otherwise be reasonably satisfactory equated to the Administrative Agent; andapplicable interest rate margin for purposes of determining whether an increase to the interest margins for the Term B Facility shall be required, to the extent that an increase in the interest rate floor for the Term B Facility would cause an increase in the interest rate then in effect thereunder, and in such Incremental case the interest rate floor (but not the interest margins for the Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable B Facility) applicable to the Lenders making Term B Facility shall be increased by such Other amount and (viii) the Additional Term B Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans.
(b) If any Additional Term B Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerBorrower shall determine the effective date (the “Additional Commitments Effective Date”) of such addition. Additional Term B Loans may be made, and Additional Revolving Credit Commitments may be provided, by any existing Lender (and each existing Term B Lender will have the right, but not an obligation, to effectuate make a portion of any Additional Term B Loans and each existing Revolving Credit Lender will have the provisions right, but not an obligation, to provide a portion of any Revolving Credit Commitments, in each case on terms permitted in this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions 2.14 and otherwise on terms reasonably acceptable to the contrary in Section 11.12. Any Administrative Agent) or by any other bank or other financial institution (any such deemed amendment may be memorialized in writing by other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent with the Borrower’s shall have consented (such consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(csuch Lender’s or Additional Lender’s providing such Additional Revolving Credit Commitments if such consent would be required under Section 10.06(b) All Incremental Term Loans shall rank pari passu in rights for an assignment of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of Revolving Credit Commitments to such effectivenessLender or Additional Lender. As a condition precedent to such addition, the conditions set forth in Section 4.02 Borrower shall be satisfied (or waived) and deliver to the Administrative Agent shall have received a certificate to that effect dated such date and executed as of the Additional Commitments Effective Date signed by a Financial Responsible Officer of the BorrowerBorrower certifying that, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromsuch increase, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (Bi) the representations and warranties contained herein in Article V and in the other Loan Documents shall be are true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that dateAdditional Commitments Effective Date, except to the extent that such representations and warranties specifically relate refer to an earlier date, in which case such representations and warranties they shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date, and except that for purposes of this Section 2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition, and (iii) after giving effect to the making of Additional Term B Loans or Additional Revolving Credit Loans, as applicable, and on a Pro Forma Basis (and with respect to any Additional Revolving Credit Loans, in the case of clause (B), assuming the Revolving Credit Facility is fully drawn), (A) the Borrower is in compliance with the covenants set forth in Section 7.11, as of the most recently completed period for which the financial statements required by Section 6.01(a) and (b) were required to be delivered and (B) the Consolidated Senior Secured Leverage Ratio shall not exceed 3.00 to 1.00 on the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 6.01. On each Additional Commitments Effective Date, each applicable Lender or other Person which is providing an Additional Term B Commitment or an Additional Revolving Credit Commitment (i) in the case of any Additional Revolving Credit Commitment, shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term B Commitment, shall make an Additional Term B Commitment to the Borrower in a principal amount equal to such Lender’s or Person’s Additional Term B Commitment. Any Additional Revolving Credit Loan shall be a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments.
(c) Any other terms of and documentation entered into in respect of any Additional Term B Loans made or any Additional Revolving Credit Commitments provided, in each case pursuant to this Section 2.14, shall be consistent with the Term B Loans or the Revolving Credit Commitments, as the case may be, (including with respect to voluntary and mandatory prepayments), other than as contemplated by Sections 2.14(a)(iii), (iv) or (vii) above; provided that, notwithstanding anything that such other terms and documentation in respect of any Additional Term B Loans may be materially different from those of the Term B Loans to the contrary in extent such difference shall be reasonably satisfactory to the Administrative Agent. Any Additional Term B Loans or Additional Revolving Credit Commitments, as applicable, made or provided pursuant to this Section 2.15 2.14 shall be evidenced by one or more entries in the accounts or records maintained by the Administrative Agent in accordance with the provisions set forth in Section 2.11.
(d) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as Documents may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required amended by the Administrative Agent to effect and the foregoing. In additionLoan Parties, if necessary, to provide for terms applicable to each Additional Term B Commitment and/or Additional Revolving Credit Commitment, as the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanscase may be.
Appears in 2 contracts
Sources: Credit Agreement (Gentiva Health Services Inc), Credit Agreement (Gentiva Health Services Inc)
Increase in Commitments. (a) The Borrower maySo long as no Default or Event of Default has occurred and is continuing or would result therefrom, by written upon notice to the Administrative Agent Agent, at any time after the Closing Date and prior to the Term Loan Maturity Date, the Borrower may request on one or more occasionsAdditional Term A Commitments, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Additional Term LendersB Commitments, or one or more Additional Revolving Credit Commitments (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of it being understood and agreed that (i) $50,000,000 plus at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) an unlimited amountif the Borrower makes such election, so long as, in the case provisions of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, Section shall be subject to the approval of the Administrative Agent read in its discretion (not a manner that permits such election to be unreasonably withheld, conditioned or delayed). Such notice shall set forth implemented; provided that (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (ix) the final maturity date of any Other such new tranche of term loans shall be no earlier than the Maturity Date for the Term A Loans and (y) the Weighted Average Life to Maturity of any such new tranche of term loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans); provided that (i) after giving effect to any such addition, the aggregate amount of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed $150,000,000; (ii) any such addition shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term A Commitments, Additional Term B Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) the final maturity date of any Additional Term A Loans shall be no earlier than the Term Loan Maturity Date and for the Term A Loans, (iiiv) the final maturity date of any Additional Term B Loans shall be no earlier than the Maturity Date for the Term B Loans, (v) the weighted average life to maturity of any Other the Additional Term A Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term A Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (Avi) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the weighted average life to maturity of such Other the Additional Term B Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (vii) no Lender shall be required to participate in the Additional Term A Commitments, the Additional Term B Commitments or the Additional Revolving Credit Commitments, (viii) the interest rate and amortization schedule applicable to the Additional Term A Commitments and the Additional Term B Commitments shall be determined by the Borrower and the lenders thereof and (Bix) four. The other terms of the Incremental Additional Term A Loans and the Incremental Additional Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term B Loans shall rank pari passu in rights right of payment, prepayment, voting, security, payment and lien priorities of security with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) Revolving Credit Loans and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (MSCI Inc.), Credit Agreement (MSCI Inc.)
Increase in Commitments. (a) The Borrower may, by written notice to the Administrative Agent at At any time after following the Closing Agreement Date and prior to the Term Loan Maturity DateTermination Date the aggregate amount of the Commitments may, request on at the option of the Borrower, be increased by an amount not in excess of $200,000,000, either by new Banks establishing such additional Commitments or by one or more occasionsthen-existing Banks increasing their Commitments (each such increase by either means, up a "Commitment Increase," and each such new Bank or Bank increasing its Commitment, an "Additional Commitment Bank"); provided that (a) each Additional Commitment Bank shall be reasonably acceptable to three the Administrative Agent and the Issuing Bank, (b) no Default shall exist immediately prior to or after the effective date of such Commitment Increase, (c) each such Commitment Increase shall be in an amount not less than $10,000,000 and multiples of $5,000,000 in excess thereof, (d) no such Commitment Increase shall become effective unless and until the Borrower, the Administrative Agent, the Issuing Bank and the Additional Commitment Banks shall have executed and delivered an agreement substantially in the aggregateform of Schedule 1.09 (a "Commitment Increase Supplement"), Incremental Term Loan Commitments from one or more Incremental Term Lenders, and (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered d) the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, increase in the case Total Commitments shall not exceed $200,000,000. On the effective date of this clause (ii)such Commitment Increase, each Additional Commitment Bank shall purchase, for assignment, from each other existing Bank the portion of such other Bank's RC Loans and Letter of Credit Participations outstanding at such time such that, after giving pro forma effect to such assignments, the Borrowing respective aggregate amount of RC Loans and Letter of Credit Participations of each Bank shall be equal to such Bank's pro rata share (based on the total Commitments, as increased pursuant hereto) of the aggregate RC Loans and Letter of Credit Participations outstanding. The purchase price for the RC Loans and Letter of Credit Participations so assigned shall be the principal amount of the RC Loans and unreimbursed Drawings so assigned plus the amount of accrued and unpaid interest thereon on the date of assignment. Upon payment of such Incremental Term Loan purchase price, each other Bank shall be automatically deemed to have sold and made such an assignment to such Additional Commitment Bank and shall, to the application extent of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loansinterest assigned, be released from its obligations under this Agreement, and after giving pro forma effect such Additional Commitment Bank shall be automatically deemed to any Permitted Acquisition, Investment or have purchased and assumed such an assignment from each other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term LenderBank and, if not already a Lender Bank hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; party hereto and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenantsof the interest assigned, events of default, representations or warranties or other rights or provisions that place greater restrictions on have the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events obligations of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into a Bank under this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (Xcel Energy Inc), 364 Day Credit Agreement (Xcel Energy Inc)
Increase in Commitments. (a) The Borrower may, by written notice to the Administrative Agent at At any time during the period from and after the Closing Date and prior to through the Term Loan Maturity date that is the fourth year anniversary of the Closing Date, request on one or more occasions, up to three in at the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval option of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans Borrower with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required LendersAdministrative Agent, such consent to be granted in the Administrative Agent’s sole discretion, and subject to the conditions set forth in clause (b) below, the Revolving Commitments may be increased by, or one or more new tranches of term loans (the “Additional Term Loans”) may be created in, an amount not in excess of $40,000,000 (each such increase, an “Increase”); provided, however, (i) that in no event shall the final maturity date Revolving Commitments be increased by an amount in excess of any Other Term Loans shall be no earlier than the Term Loan Maturity Date $5,000,000 and (ii) there shall be not more than five (5) Increases during the weighted average life term of this Agreement. The Administrative Agent shall invite each Lender to maturity increase its Revolving Commitments or provide an Additional Term Loan (as the case may be) (it being understood that no Lender shall be obligated to increase its Revolving Commitments or provide an Additional Term Loan) in connection with a proposed Increase at the interest margin proposed by Borrower, and if sufficient Lenders do not agree to increase their Revolving Commitments or provide an Additional Term Loan (as the case may be) in connection with such proposed Increase on terms acceptable to the Borrower, then the Administrative Agent or the Borrower may invite any prospective lender who is reasonably satisfactory to Administrative Agent and the Borrower to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $2,500,000 and integral multiples of $100,000 in excess thereof.
(b) Each of the following shall be conditions precedent to any Increase of the Revolving Commitments or the making of any Other Additional Term Loans in connection therewith:
(i) each of the conditions precedent set forth in Section 5.2 (subject to customary “SunGard” limitations in connection with Limited Condition Acquisitions) shall be satisfied and no Default or Event of Default (other than in connection with Limited Condition Acquisitions, in which case there shall be no shorter than the remaining weighted average life to maturity Default or Event of Default as of the Closing Date LCA Test Date) shall occur after giving effect to the occurrence of such Increase of the Revolving Commitments or the making of any Additional Term Loans and the use or proceeds thereof,
(ii) Borrower shall be in compliance with the then applicable financial covenants after giving effect to the making of the Increase of the Revolving Commitments or the making of any Additional Term Loans, and the application of the proceeds thereof, on a Pro Forma Basis and calculated in accordance with Section 1.3 (in the case such Additional Term Loan is used to finance a Limited Condition Acquisition); provided, further, that, if the Initial Yield Consolidated Leverage Ratio as of the last day of the fiscal quarter most recently ended prior to the date on which the Additional Term Loan is funded (subject to Section 1.3 in the case such Other Additional Term Loans exceeds by more Loan is used to finance a Limited Condition Acquisition) shall not exceed 0.25x less than 0.50% the sum of then-prevailing Consolidated Leverage Ratio covenant compliance level set forth in Section 7.1 for the most recently reported fiscal quarter end (Asubject to Section 1.3 in the case such Additional Term Loan is used to finance a Limited Condition Acquisition),
(iii) the margin then in effect for Term Loans that are Eurodollar Loans plus Borrower shall have delivered to the Administrative Agent a Compliance Certificate evidencing compliance with the requirements of clause (Bii) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans above,
(the amount of such excess above 0.50% being referred iv) Borrower shall have delivered to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal which shall in turn promptly furnish to the sum Lenders, an irrevocable written request for such Additional Term Loan at least ten (10) Business Days prior to the requested funding date of such Additional Term Loan or Increase to the Revolving Commitments or such earlier date as the Administrative Agent may agree; provided that if such request indicates that such request is conditioned upon the occurrence of a specified event, such request may be revoked if such event does not occur prior to the requested funding date.
(xv) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangementAny prospective Lender, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Administrative Agent have signed a joinder agreement to this Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be (a “Joinder”), in form and substance reasonably satisfactory to the Administrative Agent; and, to the extent that which such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loansprospective Lender, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warrantiesBorrower, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendmentare party. Each of the parties hereto hereby agrees thatAny Joinder may, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without with the consent of the other Administrative Agent, the Borrower and the Lenders hereto or prospective Lender agreeing to the Additional Term Loan, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, appropriate to effectuate the provisions of this Section 2.152.26 (including, andif applicable, for any amendment necessary to ensure and demonstrate that the avoidance Liens and security interests granted by the Loan Documents are perfected under the UCC to secure the Obligations in respect of doubt, this Section 2.15(b) shall supersede any provisions the Additional Term Loans or Increase to the contrary Revolving Commitments) and the Borrower shall have executed any Notes requested by any Lender in Section 11.12connection with the making of the Additional Term Loan or Increase to the Revolving Comments.
(vi) The Borrower shall have paid all fees required pursuant to the Fee Letter.
(c) No Lender shall be obligated to participate in any Additional Term Loan or Increase to the Revolving Commitment, and each such Lender’s determination to participate shall be in such Lender’s sole and absolute discretion. Any The Administrative Agent shall invite each Lender to provide an Additional Term Loan or Increase to the Revolving Commitment (it being understood that no Lender shall be obligated to provide an Additional Term Loan or Increase to the Revolving Commitment) and to the extent that, within five (5) Business Days after receipt of such deemed amendment invitation, sufficient Term Lenders do not agree to provide an Additional Term Loan or Increase to the Revolving Commitment on terms acceptable to the Borrower, then the Borrower may be memorialized in writing invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” and is approved by the Administrative Agent with the Borrower’s consent (such approval not to be unreasonably withheld) and furnished to become a Lender in connection with the proposed Additional Term Loan or Increase to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary GuarantorsRevolving Commitment.
(d) Notwithstanding the foregoing, no Incremental The Additional Term Loan or Increase to the Revolving Commitment shall, for purposes of prepayments, be treated substantially the same as the Term Loans funded on the Closing Date and the then existing Revolving Commitments, and shall become effective under this have the same terms as the Term Loans and Revolving Commitment (except as contemplated in the proviso below and except for terms that are applicable after the later of the Term Loan Maturity Date and the Revolving Termination Date); provided that (except as may be mutually agreed among the Borrower, the Administrative Agent and the Required Lenders or such greater percentage of Lenders required by Section 2.15 unless 10.1(a)), (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent no Additional Term Loan shall have received a certificate final maturity date earlier than the Term Loan Maturity Date and no Increase to that effect dated such the Revolving Commitment shall have a maturity date and executed by a Financial Officer of earlier than the BorrowerRevolving Termination Date, (ii) the Administrative Agent amortization schedule of any such Additional Term Loan shall not have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term Loans funded on the Closing Date, and (iii) if the Credit Parties and their Subsidiaries would all-in yield (which will be in compliance determined by (x) including interest rate margins, original issue discount (based on a pro forma basis (assuming four-year average life to maturity or, if less, the remaining life to maturity), and upfront fees payable by the Borrower generally to all the lenders of such Incremental Additional Term Loan Commitments were fully drawn and without “netting” or Increase to the cash proceeds Revolving Commitment, (y) if such Additional Term Loan or Increase to the Revolving Commitment includes an interest rate floor greater than the applicable interest rate floor under the then extant Term Facility or Revolving Facility, such differential between interest rate floors will be equated to the applicable all-in-yield for purposes of any Incremental determining whether an increase to the interest rate margin under the then extant Term LoansFacility or Revolving Facility will be required, and giving pro forma effect in such case, the interest rate floor (but not the interest rate margin) applicable to any Permitted Acquisition the then extant Term Facility or other transaction consummated Revolving Facility will be increased to the extent of such differential between interest rate floors, and (z) excluding arrangement, commitment, structuring, underwriting and amendment fees applicable to such Additional Term Loan or Increase to the Revolving Commitment) shall not be more than 0.50% higher than the corresponding all-in connection therewithyield (determined on the same basis) applicable to the then extant Term Loan Facility or Revolving Facility unless the interest rate margin (or Eurodollar or ABR floors) with a Leverage Ratio that does not exceed 0.25 respect to 1.00 less than the Leverage Ratio that then extant Term Facility or Revolving Facility is actually provided for increased by an amount equal to the difference between the all-in yield with respect to such incremental term loans and the all-in yield applicable to the then extant Term Loan Facility or Revolving Facility, minus 0.50%. The Revolving Loans and Revolving Commitments established pursuant to this Section 7.07(a) 2.26 shall constitute Revolving Loans and Revolving Commitments under, and shall be entitled to all the benefits afforded by, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents. Scheduled payments on the Additional Term Loan shall commence on the first full quarter end following an Additional Term Loan advance, at the time of such Borrowingthen applicable payment terms for the extant Term Loan.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan CommitmentUnless otherwise specifically provided herein, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the increased Revolving Commitments pursuant to this Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans2.26, and (ii) upon the representations funding of any Additional Term Loan, all references in this Agreement and warranties any other Loan Document to the Term Loans shall be limited deemed, unless the context otherwise requires, to (x) include the representation and warranty that the Loans incurred Additional Term Loan, as applicable, advanced pursuant to this Agreement are senior Indebtedness of the Borrower Section 2.26 and (yiii) all references in this Agreement and any other Loan Document to the Specified Representations, which Term Commitments shall be true and correct both at deemed, unless the time of signing of context otherwise requires, to include the relevant acquisition or similar agreement and at commitment to advance an amount equal to the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Additional Term Loans by the date and time required hereunder with respect contemplated pursuant to the applicable Type of Loanthis Section 2.26.
(f) Each Any Additional Term Loan established pursuant to this Section 2.26 shall constitute a Term Loan and Term Commitment under the Loan Documents, and shall rank pari passu in right of payment in respect of the parties hereto hereby agrees that the Administrative Agent may, Collateral and with the Borrower’s prior written consent, take any Obligations in respect of the Revolving Loans and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other the Term Loans), when originally made, are included in each Borrowing of outstanding Term . Any Revolving Loans on a pro rata basisand Increase to the Revolving Commitments established pursuant to this Section 2.26 shall constitute Revolving Loans and Revolving Commitments under the Loan Documents, and shall rank pari passu in right of payment in respect of the Borrower agrees Collateral and with the Obligations in respect of the Revolving Loans and the Term Loans.
(g) Upon the funding of each Additional Term Loan that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, represents an increase to the extent any Incremental Term Loans are not Other Loan Commitment hereunder or has the same amortization of the then extant Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to 2.3 shall be made recalculated and increased, commencing in the first full quarter after the making of such Incremental Term Loans Loan is funded, by aggregating the Term Loan made on the Closing Date with the Incremental Term Loan and multiplying such amount by the applicable percentage set forth in the table in Section 2.3 and such amended amortization schedule shall be ratably increased by effective commencing on the aggregate principal amount last day of such the first full fiscal quarter after the Incremental Term LoansLoan is funded.
(h) This Section supersedes any provisions in Section 2.18 or 10.1 to the contrary.
(i) The proceeds of any Increase shall be used to finance Permitted Acquisitions.
Appears in 2 contracts
Sources: Credit Agreement (Cambium Networks Corp), Credit Agreement (Cambium Networks Corp)
Increase in Commitments. (a) The So long as (x) no Default exists or would exist after giving effect to the making of the Incremental Term Loans or Incremental Revolving Loans referred to below and the use of proceeds there from and (y) after giving effect to the making of the Incremental Term Loans or Incremental Revolving Loans referred to below and the use of proceeds there from, Borrower maywould be in compliance with the Financial Covenants on a pro forma basis on such date and for the most cent fiscal quarter for which financial statements have been delivered in accordance with Section 5.01 after giving effect on a pro forma basis to any related adjustment events, by including any Acquisitions or dispositions after the beginning of the relevant calculation period but prior to or simultaneous with the borrows of such Incremental Term Loans or Incremental Revolving Loans, then upon written notice to the Administrative Agent at any Agent, Borrower may from time to time (but only after the Closing Date completion of the syndication the Commitments and prior to Loans (within the meaning of the Fee Letter) request additional term loans (the “Incremental Term Loan Maturity DateLoans” and the related commitments, request on one or more occasions, up to three in the aggregate, “Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)Commitments”) in an aggregate principal amount not to exceed $200,000,000 and/or additional revolving loans (the sum “Incremental Revolving Loans” and the related commitments, the “Incremental Revolving Loan Commitments”) in an aggregate principal amount not to exceed $25,000,000; provided that the aggregate amount of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan Loans and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio Revolving Loans shall not exceed 2.50:1.00$200,000,000; provided, further, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which any such increase shall be in minimum increments an aggregate amount of $25,000,000 or any whole multiple of $1,000,000 and in excess thereof; provided, further, that any existing Lender approached to provide all or a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms portion of the Incremental Term Loans and related commitments or Incremental Revolving Loans and related commitments may elect or decline, in its sole discretion, to be made thereunder; providedprovide such loans and commitments. To the extent the existing Lenders decline to agree to provide or do not affirmatively agree to provide within 10 Business Days of such request any portion of an Incremental Term Loan or an Incremental Revolving Loan and the related commitments, that, without the prior written consent Borrower may seek such Incremental Term Loan or Incremental Revolving Loan from any bank or financial institution that would qualify as an Eligible Assignee. The Incremental Term Loans (A) shall rank pari passu in right of payment and right of security in respect of the Required LendersCollateral with the Term Loans and (B) other than amortization, pricing and maturity date, shall have substantially the same terms as Term Loans existing immediately prior to the effectiveness of the amendment creating such Incremental Term Loans; provided that (ix) the Incremental Term Loans shall not have a final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date Date, and (iiy) the weighted average life to maturity of any Other Incremental Term Loans shall be no not have a Weighted Average Life to Maturity that is shorter than the then-remaining weighted average life Weighted Average Life to maturity Maturity of the Closing Date Term Loans. Any Term Lender or additional bank or financial institution electing to make available an Incremental Term Loan Commitment (an “Incremental Term Lender”) shall become a Lender or make its Incremental Term Loan Commitment available, as the case may be, under this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement giving effect to the modifications permitted by this Section 2.21 and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Incremental Term Lender and the Administrative Agent, and provided, further, that, if to any other documentation; in each case on terms and documentation satisfactory to the Initial Yield on such Other Term Administrative Agent and the Lead Arranger. The Incremental Revolving Loans exceeds by more than 0.50% the sum of (A) the margin then shall rank pari passu in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter right of the amount payment and right of such upfront fee paid on the Closing Date security in respect of the Term Loans (Collateral with the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Revolving Loans and (B) four. The other than pricing and maturity date, shall have substantially the same terms as Revolving Loans existing immediately prior to the effectiveness of the amendment creating such Incremental Term Revolving Loans; provided that (x) the Incremental Revolving Loans shall not have a final maturity date earlier than the applicable maturity date of the Revolving Loans and the Incremental Term Loan Assumption Agreement commitments thereunder may not be terminated prior to the extent not consistent with date that all Revolving Credit Commitments hereunder are terminated. Any Revolving Lender or additional bank or financial institution electing to make available an Incremental Revolving Commitment (an “Incremental Revolving Lender”) shall become a Lender or make its Incremental Revolving Commitment available, as the terms applicable case may be, under this Agreement, pursuant to an Incremental Facility Amendment to this Agreement giving effect to the Term Loans hereunder shall otherwise be reasonably modifications permitted by this Section 2.21 and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Incremental Revolving Lender and the Administrative Agent, and to any other documentation, in each case on terms and documentation satisfactory to the Administrative Agent; and, to Agent and the Lead Arranger. To the extent that such an Incremental Term Loan Assumption Agreement contains any covenantsFacility Amendment is entered into to increase the Revolving Credit Commitments with respect to an existing Class of Revolving Credit Commitments, events then each of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Revolving Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events Class having a Revolving Credit Commitment of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and Class prior to such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent Facility Amendment (the “Pre-Increase Revolving Lenders of such Class” and the effective date of such Incremental Facility Amendment, the “Increase Effective Date”) shall promptly notify assign on the Increase Effective Date, and such Incremental Revolving Lenders of such Class shall purchase from each Pre-Increase Revolving Lender of such Class, at the principal amount thereof, such interests in the Revolving Loans of such Class and, if such Class is the Revolving Credit Commitments, participation interests in LC Exposure and Swingline Loans outstanding on such Increase Effective Date as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees shall be necessary in order that, upon the effectiveness after giving effect to all such assignments and purchases, such Revolving Loans of any such Class and participation interests in LC Exposure and Swingline Loans, if applicable, will be held by Pre-Increase Revolving Lenders of such Class and Incremental Term Loan Assumption Agreement or Revolving Lenders of such other joinder agreement or amendmentClass ratably in accordance with their Revolving Commitments of such Class after giving effect to such increased Revolving Commitments of such Class. An Incremental Facility Amendment may, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the any other Lenders hereto Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effectuate effect the provisions of this Section 2.15, and, for the avoidance of doubt, 2.21.
(b) If any Incremental Term Loan Commitments or Incremental Revolving Loan Commitments are made in accordance with this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by 2.21, the Administrative Agent with and Borrower shall determine the Borrower’s consent effective date (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All each, an “Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waivedFacility Effective Date”) and the final allocation of such increase. The Administrative Agent shall have received promptly notify Borrower and the Lenders of the final allocation of such increase and the Incremental Facility Effective Date. As a condition precedent to such increase, Borrower shall deliver to the Administrative Agent a certificate to that effect of Borrower dated such date and executed as of the Incremental Facility Effective Date signed by a Financial Officer of Borrower (i) certifying and attaching (A) the Borrower, resolutions adopted by Borrower approving or consenting to such increase and (B) a certificate demonstrating pro forma compliance with the Financial Covenants as set forth in Section 2.21(a) and (ii) the Administrative Agent shall have received legal opinionscertifying that, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromsuch increase, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein set forth in Article III and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date the Incremental Facility Effective Date (unless expressly stated to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that), notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if and (B) no Default shall have occurred and be continuing.
(c) Borrower shall use the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Loans and Incremental Term LoansRevolving Loans for general corporate purposes, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loanincluding acquisitions.
(fd) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take This Section 2.21 shall supersede any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included provisions in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, 9.08 to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanscontrary.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Emdeon Inc.), First Lien Credit Agreement (Emdeon Inc.)
Increase in Commitments. The Borrower may from time to time add one or more tranches of term loans or increase outstanding tranches of term loans (each an “Incremental Term Facility”) and/or increase commitments under any Revolving Facility (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Borrower, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (and, for the avoidance of doubt, shall not require the consent of any other Lender) (each an “Incremental Facility Amendment”); provided that:
(a) The Borrower may, by written notice to the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount of all Incremental Facilities established under this Section 2.16 shall not to exceed the sum of of:
(i) $50,000,000 plus 175,000,000; plus
(ii) after the Delayed Draw Term A Loan Termination Date, an unlimited amount, amount so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing relevant Incremental Facility on a Pro Forma Basis, the Consolidated Secured Net Leverage Ratio does not exceed the lesser of (x) 3.00:1.00 and (y) the Consolidated Secured Net Leverage Ratio of the Borrower as of the Delayed Draw Term A Loan Termination Date (which amount shall be no less than 1.60:1.00) (the “Incremental Incurrence Ratio”) (assuming the full amount of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were Facility is fully drawn and without “netting” the cash proceeds of such Incremental Facility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Borrower); provided that any Incremental Facility may be incurred under either sub-clauses (i) or (ii) of this clause (a) as selected by the Borrower in its sole discretion and if any Incremental Facility is intended to be incurred in part under both sub-clauses (i) and (ii) then the permissibility of the portion of such Incremental Facility to be incurred under sub-clause (ii) shall first be determined without giving effect to the portion of such Incremental Facility incurred under sub-clause (i), but giving full Pro Forma Effect to the use of proceeds of the entire amount of such Incremental Facility;
(b) no Default or Event of Default shall exist on the effective date of any Incremental Facility or would exist after giving effect to any Incremental Facility;
(c) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(d) each Incremental Facility shall be in an aggregate principal amount of at least $10,000,000 and each Incremental Facility Commitment shall be in a minimum principal amount of at least $1,000,000, in the case of an Incremental Revolving Increase, and at least $1,000,000 in the case of an Incremental Term LoansFacility (or, in each case, such lesser amounts as the Administrative Agent may agree);
(e) each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(f) the Borrower shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such increase signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, certifying that, before and after giving pro forma effect to such increase, (1) the representations and warranties of each Loan Party contained in Article V or any Permitted Acquisitionother Loan Document, Investment or other transaction consummated which are contained in any document furnished at any time under or in connection herewith or therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on and as of the date of such increase, except to the approval extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) as of such earlier date, (2) no Default or Event of Default exists and (3) such Incremental Facility or Incremental Facilities have been incurred in compliance with this Agreement;
(ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility; and
(iii) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility;
(g) the Administrative Agent shall have received documentation from each Person providing a commitment in respect of such requested Incremental Facility or Incremental Facilities (each such commitment, an “Incremental Facility Commitment”) evidencing its discretion Incremental Facility Commitment and its obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(not to be unreasonably withheldh) in the case of an Incremental Term Facility, conditioned the Administrative Agent, in consultation with the Borrower, shall have determined whether such Incremental Term Facility consists of a tranche A term loan (an “Incremental Tranche A Term Facility”) or delayeda tranche B term loan (an “Incremental Tranche B Term Facility”). Such notice shall set forth ;
(i) in the case of an Incremental Term Facility that is an Incremental Tranche A Term Facility:
(i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and a minimum amount of $5,000,000), (ii) the final maturity date on which for such Incremental Term Loan Commitments are requested to become effective (which Facility shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise as agreed to by the Administrative Agent) Loan Parties and (iii) whether the Lenders providing such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).Facility; provided that:
(bA) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment final maturity of such Incremental Term Lender. Each Incremental Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Term Loan Assumption Agreement shall specify the terms of the Incremental Term A Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, and (i2) the final maturity date of any Other then outstanding Incremental Tranche A Term Loans Loan; and
(B) the Weighted Average Life of such Incremental Term Facility shall not be no earlier shorter than the then remaining Weighted Average Life of the Term A Loan Maturity Date and or any then outstanding Incremental Tranche A Term Loan;
(ii) the weighted average life to maturity proceeds of any Other such Incremental Term Loans Facility shall be no shorter than used for the remaining weighted average life to maturity of purposes described in the Closing Date definitive documentation for such Incremental Term Loans, and provided, further, that, if the Initial Yield on Facility;
(iii) such Other Incremental Term Loans exceeds by more than 0.50% the sum of (A) the margin then Facility shall share ratably in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect any prepayments of the Term Loans A Loan and any then outstanding Incremental Tranche A Term Loan pursuant to Section 2.06 (or otherwise provide for more favorable prepayment treatment for the amount of such excess above 0.50% being referred to herein then outstanding Term A Facility) and shall have ratable voting rights as the “Yield Differential”Term A Facility (or otherwise provide for more favorable voting rights for the Term A Facility), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of ; and
(x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (yiv) if the Lenders making such Other Incremental Term Loans receive an upfront fee (other than a customary arrangement, underwriting Facility consists of one or structuring fee or other similar fee) directly or indirectly from the Borrower or any more new tranches of its Subsidiariesterm loans, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent thereof, if not consistent with the terms applicable to the Term Loans hereunder A Loan, shall otherwise be reasonably satisfactory acceptable to the Administrative Agent; and;
(j) in the case of an Incremental Term Facility that is an Incremental Tranche B Term Facility:
(i) the interest rate, to the extent that interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Assumption Agreement contains Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Term B Loan and (2) the final maturity date of any covenantsthen outstanding Incremental Tranche B Term Loan; provided that in the event the Term B Loans are no longer outstanding, events the final maturity of default, representations such Incremental Tranche B Term Loan shall not be earlier than the Maturity Date with respect to the Term A Loans;
(B) the Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term B Loan or warranties or other rights or provisions that place greater restrictions any then outstanding Incremental Tranche B Term Loan;
(C) if the All-In-Yield on such Incremental Term Facility exceeds the All-In-Yield on the Borrower Term B Loan or any of their respective Subsidiaries that are then outstanding Incremental Tranche B Term Facility by more favorable than 50 basis points per annum, then the Applicable Rate or fees payable by the Borrower with respect to the Lenders making such Other Term Loans, the existing Lenders B Loan and each then outstanding Incremental Tranche B Term Facility shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Facility be increased to the extent necessary to cause the All-In-Yield on the Term B Loan Assumption Agreementand each then outstanding Incremental Tranche B Term Facility to be not more than 50 basis points less than the All-In-Yield on such Incremental Term Facility (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Borrower);
(ii) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(iii) such Incremental Term Facility shall share ratably in any prepayments of the Term B Loan and any then outstanding Incremental Tranche B Term Loan pursuant to Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for the then outstanding Term Facilities); and
(iv) if such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the terms applicable to the Term B Loan, shall be reasonably acceptable to the Administrative Agent;
(k) in the case of any Incremental Revolving Increase with respect to the Revolving Facility:
(i) such Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins, provided that, subject to clause (ii) below, such Incremental Revolving Increase may be issued with a utilization fee and/or additional unused fee payable solely to the Lenders under such Incremental Revolving Increase) applicable to the Revolving Facility; and
(ii) the existing Lenders under the Revolving Facility shall on the effective date of such Incremental Revolving Increase make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility to the Lenders providing such Incremental Revolving Increase and the Administrative Agent may make such adjustments to the Register as are necessary so that, after giving effect to such assignments and adjustments, each Lender under the Revolving Facility (including the Lenders providing such Incremental Revolving Increase) will hold revolving loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility equal to its pro rata share thereof; and
(l) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis (without “netting” the cash proceeds of such Incremental Facility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Borrower and assuming, in the case of any Incremental Facility that consists of an Incremental Revolving Increase, the full amount of such Incremental Facility is fully drawn) the Loan Parties would be in Pro Forma Compliance; provided, further, that the conditions set forth in the foregoing proviso shall be subject to the provisions of Section 1.10 in the case of any Incremental Term Facility used to finance a Limited Condition Acquisition. The Incremental Facility Commitments and credit extensions thereunder shall constitute Commitments and Credit Extensions under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents. The Lenders hereby authorize the Administrative Agent to enter into, and the Lenders agree that this Agreement and the other Loan Documents shall be amended by, such Incremental Facility Amendments to the extent (and only to the extent) the Administrative Agent deems necessary in order to establish Incremental Facilities on terms consistent with and/or to effect the provisions of this Section 2.16. This Section 2.16 shall supersede any provisions in Section 10.01 to the contrary. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties heretoFacility Amendment.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (Ii-Vi Inc), Credit Agreement (Ii-Vi Inc)
Increase in Commitments. (a) The Borrower may, by written Upon notice to the Administrative Agent at any (which shall promptly notify the Lenders), the Borrower may from time after the Closing Date and prior to the Term Loan Maturity Datetime, but in no event more frequently than five (5) times, request on one or more occasionsan increase in the Aggregate Revolving Commitments (any such increase, up to three a “Commitment Increase”) by an amount (for all such Commitment Increases in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may ) not include exceeding $500,000,000; provided that any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in such request for an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which increase shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”)10,000,000.
(b) The Borrower may seek Incremental Term Loan Commitments from existing may, at its election (i) offer one or more of the Lenders (each of which may be entitled to agree or decline the opportunity to participate in its sole discretion if so offered all or a portion of the Commitment Increase pursuant to paragraph (c) below and/or (ii) with the consent of the Administrative Agent and each Issuing Bank (which consent shall not be unreasonably withheld or delayed), offer one or more additional Eligible Assignees the opportunity to do soparticipate in all or a portion of the Commitment Increase pursuant to paragraph (d) and other Persons additional banksbelow. Notwithstanding anything to the contrary set forth herein, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term no existing Lender shall have any obligation to increase its Commitment unless it agrees to do so in its sole discretion.
(c) Any existing Lender which accepts an offer to increase its Commitment pursuant to this Section 2.21(c) shall execute and deliver to a Commitment Increase Supplement (in substantially the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined form specified by the Administrative Agent, each a “Commitment Increase Supplement”) with the Borrower, each Subsidiary Loan Party and the Administrative Agent whereupon such Lender shall be equal bound by and entitled to the sum benefits of (x) this Agreement with respect to the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which full amount of its Commitment as so increased, and, if applicable, each Subsidiary Loan Party shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than provide a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any reaffirmation of its Subsidiaries, guarantee.
(d) Any Eligible Assignee that is not an existing Lender which accepts an offer to participate in any such Commitment Increase shall execute an Additional Lender Supplement (in substantially the amount of such upfront fee divided form specified by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, each an “Additional Lender Supplement”) with the Borrower, each Subsidiary Loan Party and the Administrative Agent, whereupon such bank, financial institution or other entity shall become a Lender for all purposes and to the same extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders as if originally a party hereto and shall be bound by and entitled to the benefit benefits of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandisand, as if fully set forth hereinapplicable, without any further action required on each Subsidiary Loan Party shall provide a customary reaffirmation of its guarantee.
(e) If the part of any Person Aggregate Revolving Commitments are increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective as of date (the date “Increase Effective Date”) and the final allocation of such Incremental Term Loan Assumption Agreementincrease. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each Borrower and the Lenders of the parties hereto hereby agrees that, upon the effectiveness final allocation of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement increase and the other Loan Documents as may be necessary or appropriateIncrease Effective Date.
(f) As a condition precedent to such increase, in (i) the reasonable opinion of Borrower shall deliver to the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect of the Borrower dated such date and executed as of the Increase Effective Date signed by a Financial an Authorized Officer of the Borrower, Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase and (ii) the Administrative Agent shall have received legal opinions, board resolutions (x) immediately prior to and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromsuch increase, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and of each Loan Party set forth in the other Loan Documents shall be are true and correct (i) in the case of the representations and warranties qualified as to materiality, in all respects and (ii) otherwise, in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”respects, which shall be true and correct in all respects) each case on and as of such date to the same extent as though made on and as of that dateIncrease Effective Date, except in the case of any such representation and warranty that expressly relates to the extent such representations and warranties specifically relate to an earlier a prior date, in which case such representations representation and warranties warranty shall have been be so true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier prior date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition and (iB) no Default or Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower therefrom and (y) the Specified Representations, which Borrower shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, deliver to the Administrative Agent shall have received a Notice certificate of Borrowing in respect the Borrower dated as of any Incremental Term Loans the Increase Effective Date signed by an Authorized Officer of the date Borrower certifying as to each of the foregoing clauses (x) and time required hereunder with respect to the applicable Type of Loan(y).
(fg) Each Upon the effectiveness of a Commitment Increase and notwithstanding other provisions of this Agreement to the parties hereto hereby agrees that contrary, (i) the Administrative Agent may, with the Borrower’s prior written consent, take any and all action Lenders shall make such payments as may shall be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required directed by the Administrative Agent to effect in order that the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term outstanding Loans shall be held ratably increased by the aggregate principal amount Lenders based on their respective Commitments (after giving effect to such Commitment Increase) and (ii) participations in outstanding Letters of Credit shall be deemed to be reallocated according to the respective Commitments of the Lenders (after giving effect to such Incremental Term LoansCommitment Increase).
(h) This Section 2.21 shall supersede any provisions in Section 2.18 or 9.02 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) The Any Borrower may, may by written notice to the Administrative Agent at any time after the Closing Date and prior elect to the Term Loan Maturity Date, request on add one or more occasionsincremental term loan facilities hereunder (each, up an “Incremental Term Facility”; the commitments thereunder are referred to three in the aggregate, as “Incremental Term Loan Commitments from one or more Commitments” and loans pursuant thereto “Incremental Term LendersLoans”) and/or increase the Revolving Commitments (any such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to as “Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Incremental Facilities”); provided that the (which may or may not include any existing Lender 1) total aggregate amount for all such Incremental Facilities (assuming, for the purposes of determining each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do soclauses (A) and (B)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause any Incremental Revolving Increase, the full amount thereof is drawn) shall not (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds as of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agentincurrence thereof) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% exceed the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans $450,000,000 and (B) four. The other terms of an amount such that, subject to Section 1.03(e), at the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit time of such covenants, events of default, representations incurrence and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto after giving effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance thereto on a pro forma basis the Secured Leverage Ratio (calculated assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash (i) no proceeds of any such Incremental Term Loans, Facility shall be considered Unrestricted Cash and giving pro forma effect to (ii) any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, amounts incurred under clause (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and concurrently with amounts incurred under clause (B) will not count as Indebtedness for the representations purposes of calculating the Secured Leverage Ratio in clause (B) at such time) is less than or equal to 3.00 to 1.00 and warranties contained herein and in (2) the other Loan Documents total aggregate amount for each Incremental Facility shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify (x) the date (each, an “Increase Effective Date”) on which such Borrower proposes that the Incremental Facility shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”effective, which shall be true and correct in all respects) a date not less than five Business Days after the date on and as of which such date notice is delivered to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower Administrative Agent and (y) the Specified Representations, which shall be true and correct both at the time identity of signing of the relevant acquisition or similar agreement and at the time of the incurrence each Eligible Assignee to whom such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of Borrower proposes any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making portion of such Incremental Term Loans shall Facility be ratably increased by allocated and the aggregate principal amount amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Incremental Term LoansFacility may elect or decline, in its sole discretion, to provide such portion of the Incremental Facility.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, by written notice to the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity Termination Date, request on one or more occasions, up to three in with the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval consent of the Administrative Agent in its discretion (not to be unreasonably withheld), conditioned request that the aggregate amount of the Commitments be increased by an amount equal to $5,000,000 or delayed)an integral multiple of $1,000,000 in excess thereof (each a "Commitment Increase") to be effective as of a date that is at least 90 days prior to the scheduled Termination Date then in effect (the "Increase Date") as specified in the related notice to the Administrative Agent; provided, however, that (i) in no event shall the aggregate amount of the Commitment Increases exceed $20,000,000 and (ii) on the date of any request by the Borrower for a Commitment Increase and on the related Increase Date, the applicable conditions set forth in Article III shall be satisfied. Such Second Amended and Restated ▇▇▇▇▇▇▇ Credit Agreement
(b) The Administrative Agent shall promptly notify such Eligible Assignees as it shall identify of a request by the Borrower for a Commitment Increase, which notice shall set forth include (i) the proposed amount of the Incremental Term Loan Commitments being such requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000)Commitment Increase, (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) proposed Increase Date and (iii) whether the date by which Lenders wishing to participate in the Commitment Increase must commit to an increase in the amount of their respective Commitments (the "Commitment Date"). The requested Commitment Increase shall be allocated among the Eligible Assignees willing to participate therein in such Incremental Term Loan Commitments amounts as are to be Term Commitments or commitments to make term loans with terms different from agreed between the Term Loans (“Other Term Loans”)Borrower and the Administrative Agent.
(bc) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (Promptly following each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banksCommitment Date, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify notify the Borrower as to evidence the Incremental Term Loan amount, if any, by which the Eligible Assignees are willing to participate in the requested Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunderIncrease; provided, thathowever, without that the Commitment of each such Eligible Assignee shall be in an amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(d) On each Increase Date, each Eligible Assignee that is not prior written consent to such date a Lender hereunder and accepts an offer to participate in a requested Commitment Increase in accordance with Section 2.17(c) (each such Eligible Assignee, an "Assuming Lender") shall become a Lender party to this Agreement as of such Increase Date and the Required LendersCommitment of each Eligible Assignee that prior to such date is a Lender and accepts an offer to participate in such a requested Commitment Increase (an "Increasing Lender") shall be so increased by such amount as of such Increase Date; provided, however, that the Administrative Agent shall have received on or before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the final maturity date Board of any Other Term Loans shall Directors of the Borrower or the Executive Committee of such Board approving the Commitment Increase and the corresponding modifications to this Agreement, (B) a consent executed by each Guarantor approving the Commitment Increase and the corresponding modifications to this Agreement and (C) an opinion of counsel for the Borrower (which may be no earlier than in-house counsel), in substantially the Term Loan Maturity Date and form of Exhibit D hereto;
(ii) an assumption agreement from each Assuming Lender, if any, in form and substance satisfactory to the weighted average life to maturity of any Other Term Loans shall be no shorter than Borrower and the remaining weighted average life to maturity Administrative Agent (each an "Assumption Agreement"), duly executed by such Eligible Assignee, the Administrative Agent and the Borrower;
(iii) confirmation from each Increasing Lender of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then increase in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on its Commitment in a writing satisfactory to the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by Borrower and the Administrative Agent, be equal ;
(iv) Notes payable to the sum order of (x) the margin above Assuming Lenders and the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by Increasing Lenders evidencing the amount any “LIBOR floor” applicable aggregate indebtedness of the Borrower to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement after giving effect to the extent not consistent with the terms applicable Commitment Increase;
(v) appropriate amendments to the Term Loans hereunder shall otherwise be reasonably satisfactory Ship Mortgages to reflect the Administrative Agent; andCommitment Increase under this Section 2.17, to the extent together with evidence that each such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations amended Ship Mortgage has been duly filed and warranties, is in full force and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective effect as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify Commitment Increase; and
(vi) revised Schedule I hereto setting forth the Commitment of each Lender as after giving effect to the effectiveness of applicable Commitment Increase. On each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees thatIncrease Date, upon the effectiveness fulfillment of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer immediately preceding sentence of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable2.17(d), the Administrative Agent shall have received a Notice notify the Lenders (including, without limitation, each Assuming Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier , of Borrowing the occurrence of the Commitment Increase to be effected on such Increase Date and shall record in respect of any Incremental Term Loans by the date Second Amended and time required hereunder Restated ▇▇▇▇▇▇▇ Credit Agreement Register the relevant information with respect to the applicable Type of Loaneach Increasing Lender and each Assuming Lender on such date.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, by written notice From time to the Administrative Agent at any time on and after the Closing Restatement Effective Date and prior to the Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Tranche 1 Termination Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement no Default or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and continuing, the Borrowers may, upon at least 30 days notice to the Administrative Agent (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as promptly provide a copy of such date notice to the same extent as though made on and as Tranche 1 Lenders), propose to increase the aggregate amount of that date, except to the extent such representations and warranties specifically relate to Tranche 1 Commitments by an earlier date, in amount which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event is not less than $25,000,000 or, if greater, an integral multiple of Default under Section 8.01(a) or (i) exists or would result from the incurrence of $1,000,000 in excess thereof, with respect to any such Incremental Term Loans, and request nor (ii) when aggregated with all prior and concurrent increases in the representations Tranche 1 Commitments and warranties shall be limited Tranche 2 Commitments pursuant to this Section 2.20, is not in excess of $250,000,000. The Borrowers may increase the aggregate amount of the Tranche 1 Commitments by (x) the representation and warranty that the Loans incurred pursuant having another lender or lenders (each, an “Additional Tranche 1 Lender”) become party to this Agreement are senior Indebtedness Agreement, (y) agreeing with any Tranche 1 Lender (with the consent of such Lender in its sole discretion) to increase its Tranche 1 Commitment hereunder or (z) a combination of the Borrower procedures described in clauses (x) and (y) of this sentence.
(b) From time to time on and after the Specified RepresentationsRestatement Effective Date and prior to the Tranche 2 Termination Date so long as no Default or Event of Default shall have occurred and be continuing, which shall be true and correct both the Borrowers may, upon at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, least 30 days notice to the Administrative Agent (which shall have received promptly provide a Notice copy of Borrowing such notice to the Tranche 2 Lenders), propose to increase the aggregate amount of the Tranche 2 Commitments by an amount which (i) is not less than $25,000,000 or, if greater, an integral multiple of $1,000,000 in respect of any Incremental Term Loans by the date and time required hereunder excess thereof, with respect to any such request nor (ii) when aggregated with all prior and concurrent increases in the applicable Type Tranche 1 Commitments and Tranche 2 Commitments pursuant to this Section 2.20, is not in excess of Loan$250,000,000. The Borrowers may increase the aggregate amount of the Tranche 2 Commitments by (x) having one or more Eligible Assignees (each, an “Additional Tranche 2 Lender” and collectively with the Additional Tranche 1 Lenders, the “Additional Lenders”) become party to this Agreement, (y) agreeing with any Tranche 2 Lender (with the consent of such Lender in its sole discretion) to increase its Tranche 2 Commitment hereunder or (z) a combination of the procedures described in clauses (x) and (y) of this sentence.
(fc) Upon any increase in the amount of the Tranche 1 Commitments or Tranche 2 Commitments, as the case may be, pursuant to this Section 2.20 (each, an “Additional Commitment”):
(i) Each Additional Lender or existing Lender agreeing to increase its Commitments pursuant to this Section 2.20 (each, an “Increasing Lender”) shall enter into a Joinder Agreement pursuant to which such Additional Lender and/or Increasing Lender shall, as of the parties hereto hereby agrees effective date, undertake an Additional Commitment (or, in the case of an Increasing Lender, pursuant to which such Increasing Lender’s Commitment shall be increased in the agreed amount on such date) and such Additional Lender shall thereupon become (or, if an Increasing Lender, continue to be) a “Lender” for all purposes hereof.
(ii) The Borrowers shall in the event of an increase in the Tranche 1 Commitments, in coordination with the Administrative Agent, repay all outstanding Loans and incur additional Loans from other Tranche 1 Lenders in each case so that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included Tranche 1 Lenders participate in each Borrowing of outstanding Term Loans on a pro rata basis, and on the Borrower agrees that Section 3.02 shall apply basis of their respective Tranche 1 Commitments (after giving effect to any conversion increase in the Tranche 1 Commitments pursuant to this Section 2.20) and amounts payable under Section 2.18 as a result of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) actions required to be made after the making of such Incremental Term Loans taken under this Section 2.20, shall be ratably increased paid in full by the aggregate principal amount Borrowers;
(iii) If any such Additional Lender is a Foreign Lender, such Additional Lender shall deliver the forms required by Section 2.17(d); and
(iv) Any Additional Commitment shall be subject to the prior written approval of such Incremental Term Loansthe Issuing Lender.
Appears in 1 contract
Increase in Commitments. (a) The Borrower maymay request, on one or more occasions, by written notice (an “Incremental Borrowing Notice”) to the Administrative Agent (for further distribution to the Lenders) at any time after the Closing Date and prior to the Term Loan Latest Maturity Date, request on to incur one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments Facilities or Incremental Revolving Credit Facilities (collectively, “Incremental Facilities”) or increase the aggregate amount of the Revolving Facility from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, (as applicable, which may or may not include any existing Lender or an Additional Lender (each of which may shall be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)discretion) in an aggregate principal amount for all such requests not to exceed the sum of (iw) $50,000,000 50.0 million, plus (iix) an unlimited amountthe amount of all voluntary prepayments of the Term Loans pursuant to Section 2.13(a), plus (y) the amount of all reductions of Revolving Commitments pursuant to Section 2.12(c), plus (z) additional amounts so long asas after giving effect to the incurrence of the Loans in respect of such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments (assuming the full amount thereof is drawn) and after giving effect to any Acquisition that may be consummated in connection therewith, the Leverage Ratio (calculated on a Pro Forma Basis) shall not be greater than 3.85 to 1.00; provided that (a) no commitment of any Lender may be increased without consent of such Lender, and the existing Lenders will be afforded the opportunity to provide all or part of such Incremental Facility, (b) no Default or Event of Default exists immediately before or after giving effect thereto, (c) Borrower shall be in compliance with the case of this clause covenants set forth in Section 7.07, calculated on a Pro Forma Basis immediately before or after giving effect thereto, (ii), d) after giving pro forma effect to such incurrence, the Borrowing Leverage Ratio, calculated on a Pro Forma Basis, shall not be greater than 0.25 to 1.00 less than the Leverage Ratio then applicable pursuant to Section 7.07(a), (e) any Incremental Facility that is an increase in the aggregate amount of the Revolving Facility shall be on the same terms and pursuant to the same documentation as the existing Revolving Facility, (f) the yield applicable to any Incremental Facility that is an increase in the aggregate amount of the Revolving Facility shall be equal to the corresponding yield on the existing Revolving Facility (calculated for such Incremental Facility and existing Revolving Facility inclusive of any original issue discount and/or upfront fee percentage paid to all Lenders under the Revolving Facility, but exclusive of any arrangement, underwriting or similar fee), (g) the yield applicable to any Incremental Facility that is an additional term loan facility shall not be more than 0.50% higher than the yield on the corresponding existing facility (calculated for both such Incremental Facility and the corresponding existing facility inclusive of any “LIBOR Floor” (if applicable), original issue discount and/or upfront fees paid to all Lenders under such existing facility, but exclusive of any arrangement, underwriting or similar fee paid), unless the yield with respect to the existing facility is increased by an amount equal to or greater than the difference between the yield with respect to the Incremental Facility and the corresponding yield on such existing facility minus 0.50% (for purposes of determining the difference in “yield” as to such Incremental Facility and the corresponding existing facility, yield shall be calculated by adding the difference with respect to such Incremental Facility and such corresponding existing facility of each of the following: (i) Applicable Term Loan Margin, (ii) “LIBOR Floor”, which shall be equated to yield by taking the difference of (A) the “LIBOR Floor” of such facility and (B) the three-month Adjusted Eurodollar Rate as of a date ten business days prior to the closing of such Incremental Term Loan Facility and (iii) original issue discount and/or upfront fees, which shall be equated to yield by dividing such original issue discount and/or upfront fee percentage (as of the application of proceeds therefrom (assuming all date such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loansfacility was funded, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewitheach case), by four (provided that for purposes of calculating the Leverage Ratio shall not exceed 2.50:1.00yield related to the original issue discount and/or upfront fee percentage of the Incremental Facilities, if the weighted average life to maturity of the Incremental Facility is shorter than four years, the actual weighted average life to maturity); provided, that each the yield determined by summing clauses (i), (ii) and (iii) above shall be rounded (up or down, as the case may be) to the nearest 25 basis points (e.g., 0.25%, 0.50%, 0.75%, etc), (h) the maturity of any Incremental Facility that is an additional term loan facility or additional revolving facility shall not be earlier than the maturity date for such corresponding existing facility, (i) the weighted average life to maturity of any Incremental Facility that is an additional term loan facility shall not be shorter than that of the existing Term LenderLoan facility, (j) all other terms of such Incremental Facility that is an additional term loan facility or additional revolving facility, if not already a Lender hereunder, consistent with the terms of the corresponding existing facility (A) shall be subject to as mutually agreed upon between Borrower and the approval lenders providing such Incremental Facility and (B) shall not be more restrictive in any material respect than the terms of the Administrative Agent corresponding existing facility unless Lenders under the corresponding existing facility also receive the benefit of such more restrictive terms (without any consent being required) and (k) Incremental Facilities shall be requested in its discretion (not to be unreasonably withheld, conditioned minimum amounts of $5 million or delayed)a higher multiple of $1 million. Such notice Each Incremental Borrowing Notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000)requested, (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days five Business Days nor more than 60 days after the date of such noticeIncremental Borrowing Notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments Commitments, if any, are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). The proceeds of each Incremental Facility may be used to finance working capital needs and for general corporate purposes. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments, if any, are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which may shall be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do sodiscretion) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower and Borrower, each Incremental Term Lender and the Administrative Agent shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement having terms and such other documentation as conditions consistent with the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment terms of such Incremental Term Lenderthis Section 2.16. Each The Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; providedmay, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the any other Lenders hereto Lenders, effect such amendments to this Agreement and the other Loan Documents that are consistent with and as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.the
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Increase in Commitments. (a) The Borrower maymay at any time or from time to time after the Effective Date, by written notice to the Administrative Agent at any time after (whereupon the Closing Date and prior Administrative Agent shall promptly deliver a copy to each of the Term Loan Maturity DateLenders), request on (x) one or more occasionsnew commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any Term Loan Increase, up to three in the aggregate, “Incremental Term Loan Commitments from Loans”), or (y) one or more increases in the amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”, together with any Incremental Term LendersLoans, referred to herein as an “Incremental Facility”), provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility, (x) no Default or Event of Default has occurred and is continuing or would result therefrom (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, (A) no Event of Default shall be continuing at the time of execution of the applicable contract or agreement for such acquisition and (B) no Event of Default under Sections 7.01(a), (b), (h) or (i) shall be continuing at the time of making such acquisition)) and (y) the condition in Section 4.02(b) shall be satisfied (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, such representations shall be limited to the Specified Representations (as defined in the Existing Credit Agreement, which may or may not include shall be conformed as reasonably necessary for such acquisition to provide for certainty of funding in connection with such transaction) ), (ii) no Lender shall be Table of Contents obligated to provide an Incremental Facility as a result of any existing such request by the Borrower, and until such time, if any, as such Lender (each of which may be entitled to agree or decline to participate has agreed in its sole discretion to provide an Incremental Facility and executed and delivered to the Administrative Agent and the Borrower an Incremental Facility Agreement as provided in clause (c) of this Section 2.23, such Lender shall not be obligated to fund any Incremental Facility, (iii) any Lender may so provide an Incremental Facility without the consent of any other Lender, (iv) Incremental Facilities shall be denominated in dollars, (v) the Incremental Loan Commitment Requirements shall have been satisfied, and (vi) the provision of Incremental Facilities pursuant to this Section 2.23 on a given date pursuant to a particular Incremental Facility Agreement shall be in a minimum aggregate amount of $5,000,000 (provided that such amount may be less than $5,000,000 if so offered such amount represents all remaining availability under the opportunity limit set forth in the next sentence). Notwithstanding anything to do so)) in an the contrary herein, the aggregate principal amount of the Incremental Facilities shall not to exceed the sum of (the “Incremental Cap”): (i) $50,000,000 75,000,000 plus (ii) an unlimited amount, amount so long as, in the case of this clause (ii), the First Lien Net Leverage Ratio would not exceed 0.25:1.00 below the First Lien Net Leverage Ratio on the First Amendment Effective Date, calculated at the time of incurrence on a pro forma basis after giving pro forma effect to the Borrowing of such Incremental Term Loan thereto and the application of the proceeds therefrom thereof, and assuming any such Incremental Facility is secured on a first lien basis, whether or not so secured (and, in the case of any Revolving Commitment Increase, assuming all a full drawing of such Revolving Commitment Increase). The amount of such Incremental Facility together with any Incremental Equivalent Debt shall not exceed the Incremental Cap.
(b) The Incremental Term Loans (i) shall rank pari passu in right of payment and pari passu or junior (subject to an intercreditor agreement reasonably satisfactory in form and substance to the Administrative Agent) with respect to security with the existing Term Loans, shall not be guaranteed by any Person that has not guaranteed the existing Term Loans and shall not be secured by assets other than Collateral; (ii) shall mature on such date and amortize on such schedule as each may be agreed by the Borrower and the Lenders providing such Incremental Term Loan, provided that, as of the date of incurrence, no Incremental Term Loan Commitments were fully drawn shall mature earlier than the Term Maturity Date and, as of the date of incurrence, each Incremental Term Loan shall have a Weighted Average Life to Maturity that is no shorter than the then remaining Weighted Average Life to Maturity of the existing Term Loans; (iii) except with respect to the applicable interest rate (subject to clause (e) below) and without “netting” as set forth in this clause (b), shall be on terms and pursuant to documentation determined by the cash proceeds of any Borrower and the Additional Lenders providing the Incremental Term Loans, (iv) may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis (except in respect of any voluntary prepayments of any Class of Loans with an earlier maturity date than any other Class of Loans)) in any voluntary or mandatory prepayments of Loans hereunder; and after giving pro forma effect (v) may include any Previously Absent Financial Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Covenant for the benefit of each Class (provided, however, that if (x) the documentation governing any Permitted Acquisition, Investment or other transaction consummated Incremental Facility that includes a Previously Absent Financial Covenant in connection therewithrespect of and for the benefit of an Incremental Revolving Commitment only and (y) such Previously Absent Financial Covenant is a “springing” financial maintenance covenant solely for the benefit of a Class of Revolving Loans (and not any Class of Term Loans), the Leverage Ratio Previously Absent Financial Covenant shall only be required to be included in this Agreement for the benefit of Revolving Loans); provided that (x) the terms and conditions applicable to the Incremental Loans may also include any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof so long as such additional covenants or other provisions are applicable only during periods after the latest Maturity Date for the Term Loans in effect on the date the Incremental Loans are issued, incurred or obtained or the date on which all non-refinanced Obligations are paid in full and (y) to the extent such terms and documentation are not exceed 2.50:1.00consistent with the existing Term Loans (except with respect to the applicable interest rate, upfront fees, original issue discount or similar fees and as otherwise set forth in this paragraph), such terms and documentation shall be reasonably satisfactory to the Administrative Agent; provided, further, that each (x) any Incremental Term LenderLoans that rank pari passu in right of security and are issued pursuant to an agreement other than this Agreement shall be in the form of notes Table of Contents and not loans and (y) to the extent such Incremental Term Loans rank junior with respect to security with the existing Term Loans, if not already a Lender hereunder, such Incremental Term Loans shall be subject to an intercreditor arrangement reasonably satisfactory to the approval Administrative Agent.
(c) Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Borrower and the Administrative Agent and, in its discretion the case of a Revolving Commitment Increase, the Issuing Bank and each Swingline Lender shall have consented (such consents not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, as applicable. Commitments in respect of Incremental Facilities shall become effective pursuant to an amendment (an “Incremental Facility Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Facilities, if any, each Additional Lender, if any, and the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the The Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000)Facility Agreement may, (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the any other Lenders hereto Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, Borrower to effectuate effect the provisions of this Section 2.15, and, for the avoidance 2.22. The effectiveness of doubt, this Section 2.15(b) any Incremental Facility Agreement shall supersede any provisions be subject to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of such effectiveness, each of the conditions set forth in Section 4.02 shall be satisfied (or waivedother than as set forth in clause (a) of this Section 2.23) and such other conditions as the Administrative Agent parties thereto shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowingagree.
(ed) Both The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees in writing. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.23, each Revolving Lender immediately before prior to such increase will automatically and immediately without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to any Incremental Term Loan Commitmenteach such deemed assignment and assumption of participations, the borrowings thereunder and percentage of the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition aggregate outstanding (i) no Event participations hereunder in Letters of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal the representations and warranties shall be limited to percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Credit Commitment. In addition, (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness each of the Borrower Revolving Credit Lenders immediately prior to such increase shall assign to each Revolving Commitment Increase Lender and each of the Incremental Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Incremental Revolving Loans outstanding on such Incremental Facility Agreement closing date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Credit Lenders and Revolving Commitment Increase Lender ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Revolving Commitment Increases, (y) the Specified Representations, which each Incremental Revolving Credit Commitment shall be true deemed for all purposes a Revolving Credit Commitment and correct both at the time of signing of the relevant acquisition or similar agreement each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and at the time of the incurrence such (z) each Incremental Term Loans. If applicable, the Administrative Agent Revolving Credit Lender shall have received become a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder Lender with respect to the applicable Type of Loan.
(f) Each of Incremental Revolving Credit Commitments and all matters relating thereto. The Administrative Agent and the parties hereto Lenders hereby agrees agree that the Administrative Agent mayminimum borrowing, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, borrowing and the Borrower agrees that Section 3.02 pro rata payment requirements contained elsewhere in this Agreement shall not apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, transactions effected pursuant to the extent any Incremental immediately two preceding sentences so long as the Revolving Lenders and Term Loans are Lenders do not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loansreceive less than pro rata treatment.
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Increase in Commitments. (a) The At any time following the Closing Date, the Borrower may, may by written notice to the Administrative Agent at any time after elect to request the Closing Date and prior to the Term Loan Maturity Date, request on establishment of:
(i) one or more occasionsincremental term loan commitments (any such incremental term loan commitment, up to three in the aggregate, an “Incremental Term Loan Commitments from Commitment”) to make one or more term loans (any such additional term loans, an “Incremental Term LendersLoan”); or
(ii) one or more increases in the Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make additional revolving credit loans under this Agreement (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $250,000,00050,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may not include any existing Lender (each of which may be entitled to agree elect or decline to participate decline, in its sole discretion discretion, to provide such Incremental Loan Commitment. Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans pursuant thereto;
(B) the Administrative Agent and the Lenders shall have received from the Borrower a Pro Forma Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that (1) the Consolidated Total Leverage Ratio is less than or equal to 4.50 to 1.00 and (2) the Borrower is in compliance with the financial covenantsAsset Coverage Ratio set forth in Section 7.10 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable,7.10, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith;
(C) each of the representations and warranties contained in Section 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if so offered made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date);
(D) the opportunity to do soproceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions);
(E) in an aggregate principal amount not to exceed each Incremental Loan Commitment (and the sum Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis;
(iF) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause each Incremental Term Loan (iithe terms of which shall be set forth in a Lender joinder agreement), after giving pro forma effect such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Borrowing of Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of Borrower, but will not in any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already event have a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the shorter weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of any prior Incremental Term Loan or a maturity date earlier than the Closing latest Termination Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the any prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the or any Revolving Loan and except as provided above, all other terms and conditions applicable to the any Incremental Term Loans hereunder Loan shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.;
(cG) All in the case of each Incremental Term Loans shall rank pari passu in rights Revolving Credit Increase (the terms of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and which shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.Lender joinder agreement):
Appears in 1 contract
Sources: Credit Agreement (Cree, Inc.)
Increase in Commitments. (a) The On or prior to the date that is six months after the Third Amendment Effective Date, the Borrower may, by not less than three Business Days’ prior written notice (an “Incremental Request”) to the Administrative Agent at any time after (who shall promptly notify the Closing Lenders) and to KBRA (if KBRA is providing a rating with respect to the Borrower), request increases in the Commitments denominated in U.S. Dollars by a minimum amount of $50,000,000 and in an aggregate amount no greater than $100,000,000 (each such increase, an “Initial Incremental Commitment”). The parties hereto agree that the Borrower exercised its rights under this Section 2.15(a)(i) on the Fourth Amendment Effective Date and prior to the Term Loan Maturity Date, request on one or more occasions, up to three no further increase in the aggregate, Initial Incremental Term Loan Commitments from one or more may be requested unless otherwise agreed to in writing by the Initial Lender in their sole discretion.
(b) An Incremental Term Lenders, (which Commitment may or may not include be provided by any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do sosuch Lender, an “Incremental Lender”)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, provided that each Incremental Term Lender, if Lender that is not already a the Initial Lender hereunder, shall be subject to the approval consent of the Administrative Agent and the Initial Lender, which consent by the Initial Lender may be withheld in its the sole discretion (of the Initial Lender, but which consent by the Administrative Agent may not to be unreasonably withheld, conditioned or delayed). Such notice Notwithstanding anything herein to the contrary, no Lender shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which have any obligation to agree to increase its Commitment pursuant to this Section 2.15 and any election to do so shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date sole discretion of such notice, unless otherwise agreed Lender; provided that with respect to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied clause (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(aa)(i) or (i) exists or would result from the incurrence of such Incremental Term Loansa)(ii), and (ii) the representations and warranties each Lender shall be limited obligated to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness increase its Commitment by such Lender’s then‐existing Pro Rata Share of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.such
Appears in 1 contract
Sources: Loan and Servicing Agreement (Carlyle Credit Solutions, Inc.)
Increase in Commitments. (a) The Borrower may, by written Upon notice to the Administrative Agent at any (which shall promptly notify the Lenders), DeVry may from time after the Closing Date and prior to the Term Loan Maturity Datetime (but not more than twice), request on an increase in the Aggregate Commitments by an amount (for all such requests) not exceeding $150,000,000; by adding to this Agreement one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, other lenders (which may or may not include any existing Lender, with the consent of such Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered discretion) (each such bank, a “Supplemental Lender”) with the opportunity to do so)) in an aggregate principal amount not to exceed the sum approval of (ix) $50,000,000 plus the Administrative Agent (ii) an unlimited amount, so long as, which approval shall not be unreasonably withheld or delayed); provided that no consent of the Administrative Agent will be required in the case of this clause any such Supplemental Lender that is a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender and (ii), after giving pro forma effect to y) the Borrowing of such Incremental Term Loan and the application of proceeds therefrom L/C Issuer (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio which approval shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned withheld or delayed). Such notice shall set forth , provided that (i) the amount of the Incremental Term Loan Commitments being requested each Supplemental Lender shall have entered into an agreement pursuant to which such Supplemental Lender shall undertake a Commitment (or, if such Supplemental Lender is an existing Lender, pursuant to which its Commitment shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000increased), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which Commitment of any Supplemental Lender that is not an existing Lender shall not be less than 15 days nor more than 60 days after the date in an amount of such noticeat least $15,000,000, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to Commitment (together with the increased Commitment(s) of all other Supplemental Lenders being provided at such time) shall be Term Commitments in an aggregate amount of at least $15,000,000 or commitments to make term loans with terms different from the Term Loans any whole multiple of $1,000,000 in excess thereof and (“Other Term Loans”)ii) no Default shall then exist.
(b) The Borrower may seek Incremental Term Loan If the Aggregate Commitments from existing Lenders (each of which may be entitled to agree or decline to participate are increased in its sole discretion if so offered the opportunity to do so) and other Persons additional banksaccordance with this Section, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as DeVry shall determine the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity effective date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield DifferentialIncrease Effective Date”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to DeVry and the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each Lenders of the parties hereto hereby agrees that, upon the effectiveness amount and allocation of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement increase and the other Loan Documents as may be necessary or appropriateIncrease Effective Date. As a condition precedent to such increase, in the reasonable opinion of DeVry shall deliver to the Administrative Agent the following, in form and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions substance satisfactory to the contrary in Section 11.12. Any Administrative Agent, dated as of such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, securityIncrease Effective Date, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.in sufficient copies for each Lender:
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated signed by the Secretary or Assistant Secretary of DeVry certifying and attaching the resolutions adopted by DeVry approving such date and executed by a Financial Officer of the Borrower, increase,
(ii) the Administrative Agent shall have received legal opinionsa certificate signed by a Responsible Officer of DeVry certifying that, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromsuch increase, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein in Article V and in the other Loan Documents shall be are true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, Increase Effective Date (except to the extent that such representations and warranties specifically relate refer to an earlier date, in which case such representations and warranties shall have been they are true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything and except that for purposes of this Section 2.14, the representations and warranties contained in Section 5.5(a) and (b) hereof shall be deemed to refer to the contrary most recent statements furnished pursuant to Section 6.1(a) and (b) hereof), and (B) no Default exists,
(iii) an acknowledgment signed by each other Loan Party consenting to such increase and reaffirming its obligations under the Loan Documents; and
(iv) to the extent requested by the Administrative Agent, such opinions of counsel (including opinions of counsel for its Non-U.S. Subsidiaries) reaffirming the opinions furnished pursuant to Sections 4.1 and 6.14 as applied to the increase in Commitments pursuant to this Section 2.15 or and confirming that the Collateral secures the Obligations as so increased. On the Increase Effective Date, the Administrative Agent shall revise Schedule 2.1 to reflect the increase in any other provision of any Loan DocumentCommitments and the allocation thereof, if the proceeds of any Incremental Term Loan are it being used to finance a Limited Condition Acquisition understood that (i) no Event each Lender’s Pro Rata Share shall be revised to reflect a fraction (expressed as a decimal, carried out to the ninth decimal place) the numerator of Default under Section 8.01(a) or (i) exists or would result from which is the incurrence amount of the aggregate Commitment of such Incremental Term LoansLender at such time and the denominator of which is the amount of the Aggregate Commitments of all Lenders, and (ii) the representations and warranties allocation of such Lender’s Commitment shall be limited revised to reflect such Lender’s Pro Rata Share of the Aggregate Commitments as so revised. DeVry shall prepay any Revolving Loans outstanding on the Increase Effective Date (x) the representation and warranty that the Loans incurred pay any additional amounts required pursuant to this Agreement are senior Indebtedness of the Borrower and (ySection 3.5) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loanextent necessary to keep all outstanding Revolving Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Commitments under this Section.
(fc) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take This Section shall supersede any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included provisions in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, 2.13 or 11.1 to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanscontrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower mayAlcoa may from time to time, by written notice to the Administrative Agent at any time after the Closing Date Agent, executed by Alcoa and prior to the Term Loan Maturity Date, request on one or more occasionsfinancial institutions (any such financial institution referred to in this Section being called a “Prospective Lender”), up which may include any Lender, cause the Commitments of the Prospective Lenders to three in be increased (or cause Commitments to be extended by the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Prospective Lenders, (which as the case may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)be) in an aggregate principal amount not to exceed for each Prospective Lender set forth in such notice; provided, however, that (i) the amount of any such increase in the Commitments shall be no less than $25,000,000, (ii) the sum of (i) $50,000,000 plus (ii) an unlimited amountthe aggregate amount of increases in Commitments under this Section 2.20, so long asthe aggregate amount of increases in commitments under Section 2.20 of the 2003 Five-Year Credit Agreement and the aggregate amount of increases in commitments under Section 2.20 of the 2004 Five-Year Credit Agreement, in each case during the case term of this clause (ii)Agreement, after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided$500,000,000, that (iii) each Incremental Term Prospective Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which approval shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished (iv) each Prospective Lender, if not already a Lender hereunder, shall become a party to this Agreement by completing and delivering to the other Administrative Agent a duly executed Accession Agreement. Increases in Commitments and new Commitments created pursuant to this Section shall become effective (A) in the case of Prospective Lenders already parties hereto.
, on the date specified in the notice delivered pursuant to this Section and (cB) All Incremental Term Loans in the case of Prospective Lenders not already parties hereunder, on the effective date of the Accession Agreement. Upon the effectiveness of any Accession Agreement to which any Prospective Lender is a party, (i) such Prospective Lender shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will thereafter be secured by the Collateral deemed to be a party to this Agreement and shall be guaranteed by entitled to all rights, benefits and privileges accorded a Lender hereunder and subject to all obligations of a Lender hereunder and (ii) Schedule 2.01 shall be deemed to have been amended to reflect the Subsidiary Guarantors.
(d) Commitment of the additional Lender as provided in such Accession Agreement. Upon the effectiveness of any increase pursuant to this Section in the Commitment of a Lender already a party hereunder, Schedule 2.01 shall be deemed to have been amended to reflect the increased Commitment of such Lender. Notwithstanding the foregoing, no Incremental Term Loan increase in the aggregate Commitments (or in the Commitment of any Lender) shall become effective under this Section 2.15 unless (i) the Administrative Agent shall have received documents consistent with those delivered under paragraphs (a) and (c) of Section 4.01 as to the corporate power and authority of Alcoa to borrow hereunder after giving effect to such increase and (ii) on the date of such effectivenessincrease, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied (or waivedwith all references in such paragraphs to a Borrowing being deemed to be references to such increase) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of Alcoa. Following any increase of a Lender’s Commitment or any extension of a new Commitment pursuant to this paragraph, any Loans outstanding prior to the Borrower, (ii) effectiveness of such increase or extension shall continue outstanding until the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on ends of the Closing Daterespective Interests Periods applicable thereto, and (iii) the Credit Parties and their Subsidiaries would shall then be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect repaid or refinanced with new Loans made pursuant to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date2.01; provided that, that notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicableAgreement, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect conditions to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments borrowing set forth in Section 2.12(b) 4.02 shall not apply to such new Loans to the extent they are in a principal amount not greater than that of the Loans being refinanced. Notwithstanding anything to the contrary in this Agreement, no Lender shall be required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loansa Prospective Lender.
Appears in 1 contract
Increase in Commitments. (a) The Borrower At any time and from time to time prior to the Maturity Date, the Company may, by written notice to the Administrative Agent at any time after (which the Closing Date and prior Administrative Agent shall promptly furnish to the Term Loan Maturity Dateeach Lender), request on that one or more occasions, up Persons (which may include the then-existing Lenders) (A) offer to three in the aggregate, Incremental Term Loan increase their Revolving Credit Commitments from or to make additional Revolving Credit Commitments (if they are not already Lenders) (such increased and/or additional Revolving Credit Commitments being a “Revolving Credit Commitment Increase”) or (B) enter into one or more tranches of term loans (such additional term loans being an “Incremental Term LendersLoan” and together with any Revolving Credit Commitment Increases, a “Commitment Increase”) under this paragraph (which may or may a), it being understood that (x) if such offer is to be made by a Person that is not include any existing already a Lender, the Administrative Agent shall have consented to such Person being a Lender (each of which may hereunder to the extent such consent would be entitled required pursuant to agree or decline to participate in its sole discretion if so offered the opportunity to do so)Section 11.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Company may agree to accept less than the amount of any Commitment Increase so requested; provided that the minimum aggregate principal amount not to exceed accepted shall equal the sum lesser of (i) $50,000,000 plus 10,000,000 or (ii) the offered Commitment Increase. The minimum aggregate principal amount of any Commitment Increase shall be $10,000,000 (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Commitment Increases pursuant to this paragraph (a) exceed $250,000,000. The Company may arrange for one or more banks or other financial institutions, which may include any Lender, to extend Revolving Credit Commitments, increase their existing Revolving Credit Commitments or provide Incremental Term Loans in an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect aggregate amount equal to the Borrowing amount of the Commitment Increase. In the event that one or more of such Persons offer to increase or enter into such Revolving Credit Commitments, and such Persons, the Company, any other applicable Borrower and the Administrative Agent agree as to the amount of such Revolving Credit Commitments to be allocated to the respective Persons making such offers and the fees (if any) to be payable by the Company in connection therewith, the Company, any other applicable Borrower, such Persons, the Administrative Agent and any other Applicable Agent shall execute and deliver an appropriate amendment to this Agreement, which amendment shall specify, among other things, the procedures for reallocating any outstanding Revolving Credit Exposure (as applicable). The Incremental Term Loan Loans (a) shall rank pari passu in right of payment with the Revolving Loans and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio (b) shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, mature earlier than the Maturity Date (but may partially amortize prior to such date) and (c) shall be subject to treated substantially the approval of same hereunder as (and in any event no more favorably than) the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth Revolving Loans and the Term Loans; provided that (i) the amount terms and conditions applicable to any tranche of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without maturing after the prior written consent of Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Incremental Term Loans may be priced differently (which pricing shall be no shorter deemed to include any upfront fees, original issue discount, arrangement fees and any similar fees in connection therewith) than the remaining weighted average life pricing applicable to maturity of the Closing Date Term Loans, Revolving Loans and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentenceIncremental Term Loans may be made hereunder pursuant to an amendment, restatement or amendment and restatement (an “Initial Yield” shallIncremental Term Loan Amendment”) of this Agreement and, as determined appropriate, the other Loan Documents, executed by the Borrowers, each Lender participating in such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; andAmendment may, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the any other Lenders hereto Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Company and the BorrowerAdministrative Agent, to effectuate effect the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions 2.09. Notwithstanding anything to the contrary in Section 11.12. Any set forth herein, the Agents shall have at least 15 Business Days, but no more than 20 Business Days, prior to the proposed effective date for such deemed amendment may an increase to obtain administrative details from Lenders increasing their Commitments or Persons becoming new Lenders hereunder and to otherwise administer such increase, including processing Borrowing Requests and determining whether breakage amounts, if any, will be memorialized in writing required to be paid by the Administrative Agent with the Borrower’s consent (not to Borrowers. No such increase shall be unreasonably withheld) and furnished to the other parties heretoeffective until such administration period has expired.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(db) Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loan Commitment Loans shall become effective under this Section 2.15 2.09 unless on the proposed date of the effectiveness of such Commitment Increase (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, Company that the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall have been satisfied or waived by the Required Lenders and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially documents from the Borrower consistent with those delivered on the Closing DateEffective Date as to the organizational power and authority of the Borrowers to borrow hereunder after giving effect to such Commitment Increase; provided that delivery of a certificate by a Financial Officer of the Company certifying that the resolutions entered into by the Company and its Subsidiaries and delivered to the Administrative Agent pursuant to Section 4.01(d) are in full force and effect on the date thereof and that such resolutions have not been modified, rescinded or amended shall be deemed sufficient evidence of power and authority to incur any Commitment Increase hereunder (iii) and any Loans thereunder). Nothing contained in this Section 2.09 shall constitute, or otherwise be deemed to be, a commitment on the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, and giving pro forma effect to at any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowingtime.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (Schulman a Inc)
Increase in Commitments. (a) The Borrower maySo long as (x) no Default or Event of Default has occurred and is continuing or would result therefrom and (y) after giving effect thereto, by written on a Pro Forma Basis the Consolidated Senior Secured Leverage Ratio as of the last day of the most recently ended Measurement Period for which financial statements have been provided (or in the case of periods on or prior to October 3, 2010, filed with the SEC) shall be equal to or less than 3.75:1.00, upon notice to the Administrative Agent Agent, at any time after the Closing Date and prior to the Term Loan Maturity Date, the Borrower may request on one or more occasions, up to three in the aggregate, Incremental Additional Term Loan Commitments from or one or more Incremental Term LendersAdditional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, (which may such additional commitments in respect of any term loans or may not include any existing Lender (each of which revolving loans may be entitled implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and loans and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to agree or decline be implemented); provided that (i) after giving effect to participate in its sole discretion if so offered any such addition, the opportunity aggregate amount of Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to do sothis Section 2.14 shall not exceed the Permitted Incremental Amount (provided that the aggregate amount of Revolving Credit Commitment (inclusive of any Additional Revolving Credit Commitments)) shall not exceed the lesser of (x) the Permitted Incremental Amount and (y) $150,000,000); (ii) any such addition shall be in an aggregate principal amount not to exceed of $25,000,000 or any whole multiple of $500,000 in excess thereof (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the sum aggregate limit in respect of Additional Term Commitments and Additional Revolving Credit Commitments set forth in clause (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of to this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000proviso), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Additional Term Loans shall be no earlier than the Term Loan Maturity Date and for the Term Loans, (iiiv) the weighted average life to maturity of any Other the Additional Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental final maturity date of any Additional Revolving Credit Commitments shall be no earlier than the Maturity Date for the Revolving Credit Facility, (v) no Lender shall be required to participate in the Additional Term Loan Assumption Agreement Commitments or the Additional Revolving Credit Commitments, (vi) the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof, (vii) the interest rate applicable to the Additional Term Commitments and the Additional Revolving Credit Commitments shall be determined by the Borrower and the lenders thereof; provided that (x) in the event that the all-in yield (whether in the form of interest rate margins, original issue discount, upfront fees, or Eurodollar Rate or Base Rate floors (but not arranger, underwriting, commitment or similar fees), assuming, in the case of original issue discount and upfront fees, four-year life to maturity and assuming the Additional Revolving Credit Commitments and the Revolving Credit Facility are fully drawn) applicable to such Additional Term Commitments are greater than the all-in yield (giving effect to interest rate margins, original issue discount paid in the initial primary syndication thereof, upfront fees and Eurodollar Rate and Base Rate floors) for the Term Facility by more than 50 basis points, then the all-in yield for the Term Facility shall be increased to the extent necessary so that the all-in yield for such Additional Term Commitments are no more than 50 basis points greater than the all-in-yield for the Term Facility, and (y) in the event that the all-in yield (whether in the form of interest rate margins, original issue discount, upfront fees, or Eurodollar Rate or Base Rate floors (but not consistent with arranger, underwriting, commitment or similar fees), assuming, in the terms case of original issue discount and upfront fees, four-year life to maturity) applicable to such Additional Revolving Credit Commitments are greater than the Term Loans hereunder all-in yield (giving effect to interest rate margins, original issue discount paid in the initial primary syndication thereof, upfront fees and Eurodollar Rate and Base Rate floors) for the Revolving Credit Facility by more than 50 basis points, then the all-in yield for the Revolving Credit Facility shall otherwise be reasonably satisfactory to the Administrative Agent; and, increased to the extent necessary so that the all-in yield for such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place Additional Revolving Credit Commitments are no more than 50 basis points greater restrictions on than the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, all-in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, yield for the avoidance of doubtRevolving Credit Facility, this Section 2.15(b(viii) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Additional Term Loans shall rank pari passu in rights right of payment, prepayment, voting, security, payment and lien priorities of security with the initial Revolving Credit Loans and the Term Loans, will be secured by and (ix) the Collateral Additional Revolving Credit Commitments and loans and letters of credit made or issued thereunder shall be guaranteed by rank pari passu in right of payment and of security with the Subsidiary GuarantorsRevolving Credit Loans and the Term Loans.
(db) Notwithstanding the foregoingIf any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, no Incremental Term Loan Commitment such commitments shall become effective under this Section 2.15 unless in accordance with the definitive documentation regarding any Additional Term Commitments or Additional Revolving Credit Commitments (i) on the date of “Additional Commitments Effective Date”). Additional Term Loans may be made, and Additional Revolving Credit Commitments may be provided, by any existing Lender or by any other bank or other financial institution (any such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (other bank or waived) and other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have received consented to such Lender’s or Additional Lender’s providing such Additional Term Commitments or such Additional Revolving Credit Commitments if such consent would be required under Section 10.06(b) for an assignment of Commitments or Loans to such Lender or Additional Lender. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent a certificate to that effect dated such date and executed as of the Additional Commitments Effective Date signed by a Financial Responsible Officer of the BorrowerBorrower certifying that, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromsuch increase, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (Bi) the representations and warranties contained herein in Article V and in the other Loan Documents shall be are true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that dateAdditional Commitments Effective Date, except to the extent that such representations and warranties specifically relate refer to an earlier date, in which case such representations and warranties they shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; , (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition, and (iii) the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 7.11 for the most recently completed Measurement Period for which financial statements have been provided that(or in the case of periods on or prior to October 3, notwithstanding anything 2010, filed with the SEC) after giving effect to the contrary making of Additional Term Loans or Additional Revolving Credit Loans (to the extent any are to be made on the Additional Commitment Effective Date), as applicable. On each Additional Commitments Effective Date, each applicable Lender or other Person which is providing an Additional Term Commitment or an Additional Revolving Credit Commitment (i) in the case of any Additional Revolving Credit Commitment, shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents (though such Revolving Credit Lenders may constitute an additional class of revolving lenders) and (ii) in the case of any Additional Term Commitment, shall make (or become obligated to make) an Additional Term Loan to the Borrower in a principal amount equal to such Lender’s or Person’s Additional Term Commitment. Any Additional Revolving Credit Loan shall be a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents and any Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Loan Documents (though such Revolving Credit Loans may constitute a separate tranche of revolving loans, it being understood that all borrowings and repayments will be made pro rata between such revolving loan tranches, except as provided below). The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments. If the Additional Revolving Credit Commitments expire after the Maturity Date of the Revolving Credit Facility, then (i) the Revolving Credit Facility and related Obligations may be repaid on the Maturity Date for the Revolving Credit Facility on a non-ratable basis with the Additional Revolving Credit Commitments and (ii) Letters of Credit may have an expiration date after the Maturity Date of the Revolving Credit Facility if participations therein will be assumed by the Lenders with the Additional Revolving Credit Commitments after the Maturity Date of the Revolving Credit Facility. Any Additional Revolving Credit Commitments may permit a letter of credit sub-facility not to exceed 50% of the amount of such Additional Revolving Credit Commitments, subject to the consent of one or more L/C Issuers which agrees to issue letters of credit thereunder.
(c) Any other terms of and documentation entered into in respect of any Additional Term Loans made or any Additional Revolving Credit Commitments provided, in each case pursuant to this Section 2.15 2.14, shall be consistent with the Term Loans or the Revolving Credit Commitments, as the case may be, (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.14(a) above. Any Additional Term Loans or Additional Revolving Credit Commitments, as applicable, made or provided pursuant to this Section 2.14 shall be evidenced by one or more entries in the accounts or records maintained by the Administrative Agent in accordance with the provisions set forth in Section 2.11.
(d) This Section 2.14 shall supersede any provisions in Section 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as Documents may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required amended by the Administrative Agent and the Loan Parties to effect the foregoing. In additionprovide for terms applicable to each Additional Term Commitment, to the extent any Incremental Term Loans are not Other Additional Term Loans, Additional Revolving Credit Commitment and/or Additional Revolving Credit Loans, as the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanscase may be.
Appears in 1 contract
Sources: Credit Agreement (DineEquity, Inc)
Increase in Commitments. (a) The Borrower maySEI may at any time and from time to time, by written notice delivery to the Administrative Agent at any time after of a written notice signed by a Responsible Officer of SEI (whereupon the Closing Date and prior Administrative Agent shall promptly deliver a copy to each of the Term Loan Maturity DateLenders), request on one the addition of a new tranche of term loans (an “Incremental Term Facility”) or more occasions, up to three an increase in the aggregateAggregate Commitments (an “Incremental Revolving Commitment”) or a combination thereof; provided that at the time of any such request and upon the effectiveness of the Incremental Facility Amendment referred to below, (i) no Default or Event of Default shall exist, and (ii) SEI shall be in pro forma compliance with the financial covenants set forth in
Section 7.01 (as demonstrated in a Compliance Certificate executed by a Responsible Officer of SEI). Each Incremental Term Loan Commitments from one Facility or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may Revolving Commitment shall be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not less than $15,000,000 (or such lesser amount as may be acceptable to the Administrative Agent), and the aggregate principal amount of all such Incremental Term Facilities and Incremental Revolving Commitments shall not exceed $30,000,000. Each Incremental Term Facility (a) shall rank pari passu or junior in right of payment and of security with the sum Loans (and any such Incremental Term Facility which is junior in right of payment shall have customary second lien, subordination, standstill and other provisions reasonably acceptable to the Administrative Agent), (ib) shall not mature earlier than the Maturity Date, (c) shall have a weighted average life and contain terms as to prepayments and amortization that are acceptable to the Administrative Agent and, in the event of any such Incremental Term Facility greater than $50,000,000 plus 25,000,000, have pricing acceptable to the Administrative Agent, and (iid) an unlimited amount, so long asshall not contain additional or different covenants or financial covenants which are more restrictive in any material respect than the covenants in the Loan Documents at the time of the incurrence of such Incremental Term Facility unless either such covenants benefit all of the Lenders or are otherwise consented to by the Administrative Agent. Any such notice shall set forth the amount and terms of the relevant Incremental Term Facility or Incremental Revolving Commitment requested by SEI and to be agreed by any Lenders or Additional Lenders (as herein defined) under such Incremental Term Facility or providing such Incremental Revolving Commitment. SEI may arrange for one or more banks or other financial institutions or, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such an Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term LoansFacility, and after giving pro forma effect to any Permitted Acquisitioninstitutional investors, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; Agent and, with respect only to Incremental Revolving Commitments, the extent that Swing Line Lender and the L/C Issuer (any such bank or other financial institution being called an “Additional Lender”), to extend commitments under the Incremental Term Facility or provide a portion of the Incremental Revolving Commitment, and each existing Lender shall be afforded an opportunity, but shall not be required, to provide a portion of any such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations Facility or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date provide a portion of such Incremental Term Loan Assumption AgreementRevolving Commitment. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness Commitments in respect of any Incremental Term Loan Assumption Agreement Facility or such other joinder agreement or amendmentany Incremental Revolving Commitment shall become Commitments under this Agreement, and each Additional Lender shall become a Lender under this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement shall be amended and, as appropriate, the other Loan Documents, executed by the Borrowers, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance Section. The effectiveness of doubt, this Section 2.15(b) any Incremental Facility Amendment shall supersede any provisions be subject to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) satisfaction on the date thereof of such effectiveness, each of the conditions set forth in Section 4.02 (it being understood that all references to “date of the applicable Credit Extension” in such Section 4.02 shall be satisfied (or waived) and deemed to refer to the Administrative Agent shall have received a certificate to that effect dated such effective date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash Facility Amendment). The proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition Facility or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan CommitmentRevolving Commitment will be used for working capital, the borrowings thereunder capital expenditures and the application other general corporate purposes not in contravention of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing any Law or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if other than for the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) call of, or (i) exists tender for, all or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness substantially all of the Borrower and (y) Senior Indenture Notes permitted by Section 7.17(a). No Incremental Revolving Commitment shall increase the Specified Representations, which shall be true and correct both at sublimit for Letters of Credit or Swing Line Loans without the time of signing consent of the relevant acquisition L/C Issuer or similar agreement and at the time of the incurrence such Incremental Term LoansSwing Line Lender, as applicable. If applicable, the Administrative Agent This Section shall have received a Notice of Borrowing supersede any provisions in respect of any Incremental Term Loans by the date and time required hereunder with respect Sections 2.13 or 10.01 to the applicable Type of Loancontrary.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Increase in Commitments. (a) The Provided there exists no Default applicable to a Borrower may(or in the case of a Tranche A Borrower, provided there exists no Default applicable to any Tranche A Borrower), upon notice by written notice such Borrower to the Administrative Agent at any (which shall promptly notify the appropriate Lenders), such Borrower may from time after the Closing Date and prior to the Term Loan Maturity Datetime, request on one or more occasions, up to three an increase in the aggregate, Incremental Term Loan ▇▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Commitments from one or more Incremental Term Lenders, applicable to such Borrower (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long asor, in the case of this clause a Tranche A Borrower, to all Tranche A Borrowers) to an amount (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming for all such Incremental Term Loan Commitments were fully drawn requests) not exceeding (w) in the case of the Tranche A Commitments, US$9,066,666,667, (x) in the case of the Tranche B Commitments, US$666,666,667, (y) in the case of the Tranche C Commitments, US$666,666,667 and without “netting” (z) in the cash proceeds case of any Incremental Term Loansthe Tranche D Commitments, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00US$666,666,667; provided, that in no event shall the Aggregate Commitments applicable to all Borrowers exceed US$10,000,000,000. At the time of sending such notice, such Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Incremental Term Lender, if not already a Lender hereunder, is requested to respond (which shall in no event be subject less than 10 Business Days from the date of delivery of such notice to the approval of appropriate Lenders). Each appropriate Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any appropriate Lender not responding within such time period shall be deemed to have declined to increase its Commitment. The Administrative Agent shall notify the applicable Borrower (or, where a request was made by a Tranche A Borrower, all of the Tranche A Borrowers) and each appropriate Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, the applicable Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its discretion (counsel; provided that the minimum commitment of each such Eligible Assignee is not less than US$25,000,000.. The consent of the Lenders is not required to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) increase the amount of the Incremental Term Loan Aggregate Commitments being requested (which pursuant to this Section, except that each appropriate Lender shall be have the right to consent to an increase in minimum increments of $1,000,000 and a minimum the amount of $5,000,000its Commitment as set forth in this Section 2.14(a). If the Lenders and Eligible Assignees do not agree to increase the applicable Aggregate Commitments by the amount requested by the applicable Borrower pursuant to this Section 2.14(a), such Borrower may (i) withdraw its request for an increase in its entirety or (ii) accept, in whole or in part, the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”)increases that have been offered.
(b) The Borrower may seek Incremental Term Loan If the applicable Aggregate Commitments from existing Lenders (each of which may be entitled to agree or decline to participate are increased in its sole discretion if so offered the opportunity to do so) and other Persons additional banksaccordance with this Section, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent applicable Borrower shall reasonably specify to evidence determine the Incremental Term Loan Commitment effective date (the “Increase Effective Date”) and the final allocation of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreementincrease. The Administrative Agent shall promptly notify each Lender as the applicable Borrower and the appropriate Lenders of the final allocation of such increase and the Increase Effective Date. As a condition precedent to such increase, the applicable Borrower shall deliver to the effectiveness Administrative Agent a certificate of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each Borrower dated as of the parties hereto hereby agrees that, upon Increase Effective Date (in sufficient copies for each appropriate Lender) signed by a Responsible Officer of such Borrower certifying that no Default applicable to such Borrower exists. The applicable Borrower shall prepay any Committed Loans outstanding on the effectiveness of Increase Effective Date (and pay any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended additional amounts required pursuant to Section 3.5) to the extent (but only to the extent) necessary to reflect keep the existence and terms of the Incremental Term Loan Commitment and outstanding Committed Loans ratable with any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, revised Pro Rata Shares arising from any nonratable increase in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of Commitments under this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties heretoSection.
(c) All Incremental Term Loans This Section shall rank pari passu supersede any provisions in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (Sections 2.12 or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date 9.1 to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loancontrary.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
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Increase in Commitments. On no more than two dates (aeach, an "Increased Commitment Date") The Borrower may, by written notice to occurring on or before the Administrative Agent at any time after second anniversary of the Closing Date and prior to the Term Loan Maturity Effective Date, request on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist both before and after giving effect thereto and (B) the representations and warranties contained herein and to an increase in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary Total Commitment described in this Section 2.15 2.10, the Total Commitment may, upon the request of the Company and subject to the terms and conditions of this Section 2.10, be increased either by one or in any other provision of any Loan Documentmore new banks establishing Commitments or by one or more then-existing Banks increasing their Commitments (such increase by either means, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition "Total Commitment Increase"); PROVIDED, THAT, (i) no Event the Company shall give a written notice (the "Increase Request Notice") to the Administrative Agent specifying the total amount of Default under the increase being requested on such Increased Commitment Date (which, together with any previous increase pursuant to this Section 8.01(a2.10, shall not be in excess of $500,000,000) and the terms and conditions that will be applicable thereto, whether the same or (i) exists or would result from different than the incurrence of such Incremental Term Loansterms and conditions applicable to then-existing Commitments and Loans made thereunder, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness promptly after receipt of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicableIncrease Request Notice, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each notify each Bank of the parties hereto hereby agrees that contents thereof, (iii) each Bank shall (within the time frame to be agreed upon by the Administrative Agent mayand the Company) notify the Administrative Agent in writing of its willingness, if any, to accept a participation in the requested increase on the terms specified by the Company and the maximum amount, if any, of the requested Total Commitment Increase in which it is willing to participate (with any Bank so accepting, an "Accepting Bank"), (iv) upon receipt of each response from the Banks (with any Bank failing to so respond within the time specified being deemed to have declined to accept any participation in the requested increase), the Administrative Agent shall notify the Company thereof and such Total Commitment Increase shall be allocated, at the discretion of the Administrative Agent after consultation with the Borrower’s prior written consentCompany, take any to each Accepting Bank and all action as may be reasonably necessary to ensure that all Incremental Term Loans one or more new lenders (other than Other Term Loanseach, a "New Bank", and with the Accepting Banks, the "Additional Banks"), when originally madeas designated by the Company with the consent of the Administrative Agent and (v) except to the extent that the final sentence of this Section 2.10 is applicable, are included upon the Increased Commitment Date, each Accepting Bank's Commitment shall be increased in accordance with the foregoing, each Borrowing New Bank shall be deemed a Bank for all purposes hereof with a Commitment established in accordance with the foregoing and the Commitment Percentage of outstanding Term Loans on all Banks, including the Accepting Banks and New Banks, shall automatically be deemed adjusted to reflect the new Commitment levels of each Bank. The loans incurred by the Company pursuant to the Total Commitment Increase shall bear interest at market rates of interest as agreed by the Company, the Additional Banks and the Administrative Agent and shall have a pro rata basisfinal maturity no earlier than the Commitment Termination Date. Notwithstanding the foregoing, at the option of the Company, the Additional Banks and the Administrative Agent, the Total Commitment Increase, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Commitments and Loans to Base Rate Loans be established and made thereunder, may be structured as a separate tranche of commitments and loans under this Agreement (the "INCREMENTAL TRANCHE"), whereupon the Banks agree that the Company, the Administrative Agent and the Additional Banks may enter into an amendment to this Agreement without the consent of any other Bank to the extent, but solely to the extent, reasonably required deemed necessary by the Administrative Agent to effect establish the foregoing. In addition, terms and conditions relating to the extent interest rate, fee pricing, term, repayment and prepayment provisions with respect to such Incremental Tranche under this Agreement, PROVIDED, THAT, in any event such Incremental Term Loans are Tranche shall not Other Term Loans, have a final maturity earlier than the scheduled Commitment Termination Date and shall not have any required amortization payments set forth prior to the Commitment Termination Date in Section 2.12(b) required effect immediately prior to be made after the making Increased Commitment Date unless the average weighted life to maturity of such Incremental Term Tranche is equal to or greater than the average weighted life to maturity of the Loans shall be ratably increased by immediately prior to the aggregate principal amount of such Incremental Term LoansIncreased Commitment Date.
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Sources: Credit Agreement (CSC Holdings Inc)
Increase in Commitments. (a) The So long as (x) no Default exists or would exist after giving effect to the making of the Incremental Term Loans or Incremental Revolving Loans referred to below and the use of proceeds therefrom and (y) after giving effect to the making of the Incremental Term Loans or Incremental Revolving Loans referred to below, and the use of proceeds therefrom, Borrower maywould be in compliance with the Financial Covenant on a pro forma basis on such date and for the most recent fiscal quarter for which financial statements have been delivered in accordance with Section 5.01 after giving effect on a pro forma basis to any related adjustment events, by including any acquisitions or dispositions after the beginning of the relevant calculation period but prior to or simultaneous with the borrowing of such Incremental Term Loans or Incremental Revolving Loans, then upon written notice to the Administrative Agent at any Agent, Borrower may from time after to time request (i) additional Term Loans (the Closing Date “Incremental Term Loans” and the related commitments, the “Incremental Term Loan Commitments”) and/or (ii) additional revolving loans or, prior to the Term Loan Revolving Credit Maturity Date, request on one or more occasionsan increase to the existing Revolving Loans (the “Incremental Revolving Loans” (together with the Incremental Term Loans, up to three in the aggregate“Incremental Loans”) and, together with the related commitments, the “Incremental Revolving Loan Commitments” and, together with the Incremental Term Loan Commitments from one or more Commitments, the “Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled Commitments”) up to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount (other than Replacement Term Loans) not to exceed the sum of (iA) $50,000,000 plus 800,000,000 and (iiB) an unlimited amount, so long as, in the case of this clause (ii)amount such that, after giving pro forma effect to the Borrowing of such Incremental Term Loans (and, with respect to any Incremental Revolving Loan and Commitments, the application full utilization of proceeds therefrom (assuming all such Incremental Term Revolving Loan Commitments were fully drawn Commitment), Borrower’s Secured Leverage Ratio would not exceed 3.50:1.00 less (C) the aggregate principal amount of Incremental Substitute Indebtedness incurred by Borrower and without its Subsidiaries (such amount, the “netting” the cash proceeds of Incremental Cap”); provided that (i) any Incremental Term Loans, Loans shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and after giving pro forma effect to (ii) any Permitted Acquisition, Investment Incremental Revolving Loan Commitments shall be in an aggregate amount of $10,000,000 or other transaction consummated any whole multiple of $1,000,000 in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00excess thereof; provided, further, that each Incremental Term Lender, if not already any existing Lender approached to provide all or a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms portion of the Incremental Term Loans and related commitments or Incremental Revolving Loans and related commitments may elect or decline, in its sole discretion, to be made thereunder; provided, that, without the prior written consent provide such loans and commitments. The Incremental Term Loans (A) shall rank pari passu in right of payment and right of security in respect of the Required LendersCollateral with the Term Loans and (B) other than amortization, pricing and maturity date, shall have the same terms as such Term Loans existing immediately prior to the effectiveness of the amendment creating such Incremental Term Loans; provided that (ix) the Incremental Term Loans shall not have a final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and the Incremental Term Loans established pursuant to an Extension Amendment shall not have a final maturity date earlier than the Term Loan Maturity Date applicable to such Class of Term Loans, (iiy) the weighted average life to maturity of any Other Incremental Term Loans shall be no not have a Weighted Average Life to Maturity that is shorter than the then-remaining weighted average life Weighted Average Life to maturity Maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loans established pursuant to an Extension Amendment shall not have a Weighted Life to Maturity that is shorter than the then-remaining Weighted Average Life to Maturity Applicable to such Class of Term Loans and (z) amortization of Incremental Term Loans shall not be greater than pro rata across the life of the Incremental Term Loans. Any Term Lender or additional bank or financial institution electing to make available an Incremental Term Loan Assumption Commitment (an “Incremental Term Lender”) shall become a Lender or make its Incremental Term Loan Commitment available, as the case may be, under this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement giving effect to the extent not consistent with modifications permitted by this Section 2.21 and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Incremental Term Lender and the Administrative Agent, and to any other documentation, in each case on terms applicable to the Term Loans hereunder shall otherwise be reasonably and documentation satisfactory to the Administrative AgentAgent and the Lead Arrangers. The Incremental Revolving Loans (A) shall rank pari passu in right of payment and right of security in respect of the Collateral with the applicable Revolving Loans and (B) other than, in the case of additional revolving loans, pricing and maturity date, shall have the same terms as Revolving Loans; andprovided that the Incremental Revolving Loans shall not have a final maturity date earlier than the Revolving Credit Maturity Date and the Incremental Revolving Loans established pursuant to an Extension Amendment shall not have a final maturity date earlier than the Revolving Credit Maturity Date of the applicable Class of Revolving Loans. Any Revolving Lender or additional bank or financial institution electing to make available an Incremental Revolving Commitment (an “Incremental Revolving Lender”) shall become a Lender or make its Incremental Revolving Commitment available, to as the extent that such Incremental Term Loan Assumption Agreement contains any covenantscase may be, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into under this Agreement, mutatis mutandispursuant to an Incremental Facility Amendment to this Agreement giving effect to the modifications permitted by this Section 2.21 and, as if fully set forth hereinappropriate, without the other Loan Documents, executed by the Loan Parties, each Incremental Revolving Lender and the Administrative Agent, and to any further action required other documentation, in each case on terms and documentation satisfactory to the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to and the effectiveness of each Lead Arrangers. An Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees thatFacility Amendment may, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the any other Lenders hereto Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effectuate effect the provisions of this Section 2.152.21. In addition, andunless otherwise specifically provided herein, for all references in the avoidance Loan Documents to Term Loans, Revolving Loans, or such other Class of doubtTerm Loans or Revolving Loans created pursuant to an Extension Amendment or Incremental Facility Amendment shall be deemed, unless the context otherwise requires, to include references to Term Loans, Revolving Loans or such other Class of Term Loans or Revolving Loans established pursuant to an Extension Amendment or Incremental Facility Amendment, respectively, made pursuant to Incremental Term Loan Commitments and Incremental Revolving Loan Commitments, made pursuant to this Agreement.
(b) If any Incremental Term Loan Commitments or Incremental Revolving Loan Commitments are made in accordance with this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by 2.21, the Administrative Agent with and Borrower shall determine the Borrower’s consent effective date (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All each, an “Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waivedFacility Effective Date”) and the final allocation of such increase. The Administrative Agent shall have received promptly notify Borrower and the Lenders of the final allocation of such increase and the Incremental Facility Effective Date. As a condition precedent to such increase, Borrower shall deliver to the Administrative Agent a certificate to that effect of Borrower dated such date and executed as of the Incremental Facility Effective Date signed by a Financial Officer of Borrower (i) certifying and attaching (A) the Borrower, resolutions adopted by Borrower approving or consenting to such increase and (B) a certificate demonstrating pro forma compliance with the Financial Covenant as set forth in Section 2.21(a) and (ii) the Administrative Agent shall have received legal opinionscertifying that, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromsuch increase, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein set forth in Article III and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date the Incremental Facility Effective Date (unless expressly stated to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided ), and (B) no Default shall have occurred and be continuing.
(c) To the extent the Incremental Commitments being increased on the relevant Incremental Facility Effective Date are increases to existing Revolving Credit Commitments, then each Revolving Lender that is acquiring an Incremental Revolving Commitment on the Incremental Facility Effective Date shall make Revolving Loans, the proceeds of which will be used to prepay the Revolving Loans of the other Revolving Lenders immediately prior to such Incremental Facility Effective Date, so that, notwithstanding anything after giving effect thereto, the Revolving Loans outstanding are held by the Revolving Lenders pro rata based on their Revolving Credit Commitments after giving effect to such Incremental Revolving Commitments. If there is a new borrowing of Revolving Loans on such Incremental Facility Effective Date, the contrary Revolving Lenders after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in this accordance with Section 2.15 or in any other provision of any Loan Document, if 2.02.
(d) Borrower shall use the proceeds of any Incremental Term Loan are being used Loans and Incremental Revolving Loans for general corporate purposes (including to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of LoanPermitted Acquisitions).
(fe) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take This Section 2.21 shall supersede any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included provisions in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, 9.08 to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanscontrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower maymay at any time or from time to time after the Effective Date, by written notice to the Administrative Agent at any time after (whereupon the Closing Date and prior Administrative Agent shall promptly deliver a copy to each of the Term Loan Maturity DateLenders), request on (x) one or more occasionsnew commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any Term Loan Increase, up to three in the aggregate, “Incremental Term Loan Commitments from Loans”), or (y) one or more increases in the amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”, together with any Incremental Term LendersLoans, referred to herein as an “Incremental Facility”), provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility, (x) no Default or Event of Default has occurred and is continuing or would result therefrom (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, (A) no Event of Default shall be continuing at the time of execution of the applicable contract or agreement for such acquisition and (B) no Event of Default under Sections 7.01(a), (b), (h) or (i) shall be continuing at the time of making such acquisition)) and (y) the condition in Section 4.02(b) shall be satisfied (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, such representations shall be limited to the Specified Representations (as defined in the Existing Credit Agreement, which may or may not include shall be conformed as reasonably necessary for such acquisition to provide for certainty of funding in connection with such transaction) ), (ii) no Lender shall be obligated to provide an Incremental Facility as a result of any existing such request by the Borrower, and until such time, if any, as such Lender (each of which may be entitled to agree or decline to participate has agreed in its sole discretion to provide an Incremental Facility and executed and delivered to the Administrative Agent and the Borrower an Incremental Facility Agreement as provided in clause (c) of this Section 2.23, such Lender shall not be obligated to fund any Incremental Facility, (iii) any Lender may so provide an Incremental Facility without the consent of any other Lender, (iv) Incremental Facilities shall be denominated in dollars, (v) the Incremental Loan Commitment Requirements shall have been satisfied, and (vi) the provision of Incremental Facilities pursuant to this Section 2.23 on a given date pursuant to a particular Incremental Facility Agreement shall be in a minimum aggregate amount of $5,000,000 (provided that such amount may be less than $5,000,000 if so offered such amount represents all remaining availability under the opportunity limit set forth in the next sentence). Notwithstanding anything to do so)) in an the contrary herein, the aggregate principal amount of the Incremental Facilities shall not to exceed the sum of (the “Incremental Cap”): (i) $50,000,000 75,000,000 plus (ii) an unlimited amount, amount so long as, in the case of this clause (ii), the First Lien Net Leverage Ratio would not exceed 0.25:1.00 below the First Lien Net Leverage Ratio on the Effective Date, calculated at the time of incurrence on a pro forma basis after giving pro forma effect to the Borrowing of such Incremental Term Loan thereto and the application of the proceeds therefrom thereof, and assuming any such Incremental Facility is secured on a first lien basis, whether or not so secured (and, in the case of any Revolving Commitment Increase, assuming all a full drawing of such Revolving Commitment Increase). The amount of such Incremental Facility together with any Incremental Equivalent Debt shall not exceed the Incremental Cap.
(b) The Incremental Term Loans (i) shall rank pari passu in right of payment and pari passu or junior (subject to an intercreditor agreement reasonably satisfactory in form and substance to the Administrative Agent) with respect to security with the existing Term Loans, shall not be guaranteed by any Person that has not guaranteed the existing Term Loans and shall not be secured by assets other than Collateral; (ii) shall mature on such date and amortize on such schedule as each may be agreed by the Borrower and the Lenders providing such Incremental Term Loan, provided that, as of the date of incurrence, no Incremental Term Loan Commitments were fully drawn shall mature earlier than the Term Maturity Date and, as of the date of incurrence, each Incremental Term Loan shall have a Weighted Average Life to Maturity that is no shorter than the then remaining Weighted Average Life to Maturity of the existing Term Loans; (iii) except with respect to the applicable interest rate (subject to clause (e) below) and without “netting” as set forth in this clause (b), shall be on terms and pursuant to documentation determined by the cash proceeds of any Borrower and the Additional Lenders providing the Incremental Term Loans, (iv) may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis (except in respect of any voluntary prepayments of any Class of Loans with an earlier maturity date than any other Class of Loans)) in any voluntary or mandatory prepayments of Loans hereunder; and after giving pro forma effect (v) may include any Previously Absent Financial Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Covenant for the benefit of each Class (provided, however, that if (x) the documentation governing any Permitted Acquisition, Investment or other transaction consummated Incremental Facility that includes a Previously Absent Financial Covenant in connection therewithrespect of and for the benefit of an Incremental Revolving Commitment only and (y) such Previously Absent Financial Covenant is a “springing” financial maintenance covenant solely for the benefit of a Class of Revolving Loans (and not any Class of Term Loans), the Leverage Ratio Previously Absent Financial Covenant shall only be required to be included in this Agreement for the benefit of Revolving Loans); provided that (x) the terms and conditions applicable to the Incremental Loans may also include any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof so long as such additional covenants or other provisions are applicable only during periods after the latest Maturity Date for the Term Loans in effect on the date the Incremental Loans are issued, incurred or obtained or the date on which all non-refinanced Obligations are paid in full and (y) to the extent such terms and documentation are not exceed 2.50:1.00consistent with the existing Term Loans (except with respect to the applicable interest rate, upfront fees, original issue discount or similar fees and as otherwise set forth in this paragraph), such terms and documentation shall be reasonably satisfactory to the Administrative Agent; provided, further, that each (x) any Incremental Term LenderLoans that rank pari passu in right of security and are issued pursuant to an agreement other than this Agreement shall be in the form of notes and not loans and (y) to the extent such Incremental Term Loans rank junior with respect to security with the existing Term Loans, if not already a Lender hereunder, such Incremental Term Loans shall be subject to an intercreditor arrangement reasonably satisfactory to the approval Administrative Agent.
(c) Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Borrower and the Administrative Agent and, in its discretion the case of a Revolving Commitment Increase, the Issuing Bank and each Swingline Lender shall have consented (such consents not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, as applicable. Commitments in respect of Incremental Facilities shall become effective pursuant to an amendment (an “Incremental Facility Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Facilities, if any, each Additional Lender, if any, and the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the The Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000)Facility Agreement may, (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the any other Lenders hereto Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, Borrower to effectuate effect the provisions of this Section 2.15, and, for the avoidance 2.22. The effectiveness of doubt, this Section 2.15(b) any Incremental Facility Agreement shall supersede any provisions be subject to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of such effectiveness, each of the conditions set forth in Section 4.02 (other than as set forth in clause (a) of this Section 2.23) and such other conditions as the parties thereto shall agree.
(d) The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be satisfied (or waived) obligated to provide any Incremental Facility, unless it so agrees in writing. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.23, each Revolving Lender immediately prior to such increase will automatically and the Administrative Agent shall without further act be deemed to have received assigned to each Lender providing a certificate to that effect dated such date and executed by a Financial Officer portion of the BorrowerRevolving Commitment Increase (each, a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Credit Commitment. In addition, (x) each of the Revolving Credit Lenders immediately prior to such increase shall assign to each Revolving Commitment Increase Lender and each of the Incremental Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Incremental Revolving Loans outstanding on such Incremental Facility Agreement closing date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Credit Lenders and Revolving Commitment Increase Lender ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Revolving Commitment Increases, (y) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (z) each Incremental Revolving Credit Lender shall become a Lender with respect to the Incremental Revolving Credit Commitments and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall have received legal opinions, board resolutions not apply to the transactions effected pursuant to the immediately two preceding sentences so long as the Revolving Lenders and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does Lenders do not exceed 0.25 to 1.00 receive less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowingpro rata treatment.
(e) Both immediately before The All-In Yield applicable to the Incremental Facility, that is secured on a pari passu basis with the Obligations, shall be determined by the Borrower and immediately after giving effect the applicable lenders and shall be set forth in each applicable Incremental Facility Agreement; provided, however, that (A) with respect to any Incremental Term Loan CommitmentFacility, the borrowings thereunder and All-In Yield applicable to such Incremental Facility shall not be greater than the application applicable All-In Yield payable pursuant to the terms of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) this Agreement as amended through the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as date of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder calculation with respect to Loans existing at such time plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the Adjusted LIBO Rate floor or Alternate Base Rate floor) with respect to such Loans is increased so as to cause the then applicable Type All-In Yield under this Agreement on such Loans to equal the All-In Yield then applicable to the Incremental Facility minus 50 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of a Adjusted LIBO Rate floor or Alternate Base Rate floor on any Incremental Facility shall be effected solely through an increase in (or implementation of, as applicable) of a Adjusted LIBO Rate floor or Alternate Base Rate floor for such Loan. For the avoidance of doubt this clause (e) shall not apply to Incremental Equivalent Debt incurred in compliance with clause (f) below.
(f) Each The Borrower may, upon notice to the Administrative Agent, at any time or from time to time after the Effective Date, issue, incur or otherwise obtain Indebtedness of the parties hereto hereby agrees Borrower (and any refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or secured on a pari passu or junior lien basis with the Obligations under the initial Loans), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Facility (the “Incremental Equivalent Debt”); provided that (i) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of any Loan Party or any Restricted Subsidiary other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any guarantee by any Person other than the Loan Guarantors, (ii) if such Incremental Equivalent Debt is (x) secured on a pari passu or junior basis with the Obligations under the initial Loans, then such Incremental Equivalent Debt shall be subject to an intercreditor agreement that is reasonably satisfactory, in form and substance, to the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 or (y) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall apply be subject to any conversion of Eurodollar Loans which are Term Loans a lien subordination and intercreditor arrangement reasonably satisfactory, in form and substance, to Base Rate Loans reasonably required by the Administrative Agent and the Borrower, (iii) such Incremental Equivalent Debt (A) shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing and (B) shall not have a Weighted Average Life to effect Maturity which is shorter than the foregoing. In additionWeighted Average Life to Maturity of the then existing Term Loans, (iv) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any Incremental Term such mandatory redemption or prepayment is required to be applied first or pro rata to the Loans are not Other Term Loansand any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, the scheduled amortization payments customary offers to repurchase and prepayment events upon a change of control and a customary acceleration right after an event of default), (v) except as otherwise set forth in Section 2.12(b) required this clause (f), such Incremental Equivalent Debt shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect to be made the initial Loans (except for covenants or other provisions applicable only to periods after the making Latest Maturity Date of the Loan) and such Incremental Term Loans terms and conditions shall be ratably increased by the aggregate principal amount of current market terms for such Incremental Term Loans.ty
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Increase in Commitments. (a) The Borrower may, may by written notice to the Administrative Agent at any time after the Closing Date and prior elect to the Term Loan Maturity Date, request on add one or more occasionsincremental term loan facilities hereunder (each, up an “Incremental Term Facility”; the commitments thereunder are referred to three in the aggregate, as “Incremental Term Loan Commitments from one or more Commitments” and loans pursuant thereto “Incremental Term LendersLoans”; the Incremental Term Facilities are collectively referred to as “Incremental Facilities”); provided that the total aggregate amount for all such Incremental Facilities shall not (as of any date of incurrence thereof) exceed (x) the greater of (1) $250,000,000600,000,000 and (y) 100% of Consolidated EBITDA for the most recently completed Test Period calculated on a Pro Forma Basis, plus (y) an amount equal to the sum of all voluntary prepayments of Term Loans made pursuant to Section 2.08(a), plus (z) an additional unlimited amount so long as, after giving effect to the incurrence of such Incremental Facility, the Secured Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01 (or, if no Test Period has passed, as of the last four quarters ended), in each case, as if such Incremental Facility had been outstanding on the last day of such four-quarter period, shall not exceed 2.753.25:1.00, with the Borrower electing whether such Incremental Facility have been incurred (in whole or in part) under clauses (x), (which may or may not include any existing Lender y) and/or (each of which may be entitled to agree or decline to participate z) in its sole discretion (collectively, the “Incremental Cap”); provided, further, that (1) if so offered any Incremental Facilities are to be established or incurred under both clauses (x) or (y) and (z) above in connection with a single transaction or series of related but substantially concurrent transactions, then the opportunity maximum amount available of Incremental Facilities (or portion of Incremental Facilities) to do sobe established or incurred under clause (z) shall first be determined by calculating the establishment or incurrence under such clause (z) without giving effect to any Incremental Facilities (or portion of any Incremental Facilities) established or incurred (or to be established or incurred) under clause (x) and/or clause (y), and after such maximum amount under clause (z) has been determined, the amount of Incremental Facilities (or portion of Incremental Facilities) established or incurred (or to be established or incurred) under clause (x) and/or clause (y) shall be determined, and (2) any Incremental Facilities originally designated as incurred pursuant to clauses (x) or (y) above may be reclassified at a later date, as the Borrower may elect in a written notice to the Administrative Agent, as incurred under clause (z) above if the Borrower would meet the applicable leverage test under clause (z) above calculated on a Pro Forma Basis as of the time of such election; provided, that upon delivery of any financial statements pursuant to Section 6.01 (and the corresponding Compliance Certificate pursuant to Section 6.01(c)) following the initial incurrence of such Incremental Facilities under clauses (x) or (y) of this definition, if such Incremental Facilities could, based on any such financial statements (and the corresponding Compliance Certificate), have been incurred under clause (z) of this definition, then such Incremental Facilities shall automatically be reclassified as incurred under clause (z) above. Each Class of Incremental Facility incurred under this Section 2.13 shall be in an aggregate principal amount that is not to exceed less than $10,000,000. Each such notice shall specify (x) the sum of date (ieach, an “Increase Effective Date”) $50,000,000 plus (ii) an unlimited amount, so long as, in on which the case of this clause (ii), after giving pro forma effect to Borrower proposes that the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, Facility shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheldeffective, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), date not less than five (ii5) Business Days after the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver notice is delivered to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time identity of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect each Eligible Assignee to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and whom the Borrower agrees that Section 3.02 shall apply to proposes any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making portion of such Incremental Term Loans shall Facility be ratably increased by allocated and the aggregate principal amount amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Incremental Term LoansFacility may elect or decline, in its sole discretion, to provide such portion of the Incremental Facility.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, by written notice to the Administrative Agent Borrowers may at any time after the Closing Date and prior Amendment No. 1 Effective Date, by notice to the Term Loan Maturity DateAdministrative Agent, request on the addition of one or more occasionsadditional tranches of Term Loans (each, up to three an “Incremental Term Facility”) or an increase in the aggregateRevolving Credit Facility (each, a “Revolving Facility Increase” and, together with the Incremental Term Loan Facilities, an “Incremental Facility”) pursuant to additional commitments (the “Incremental Commitments”) to be effective as of a date (the “Increase Date”) as specified in the related Incremental Amendment; provided, however, that (i) in no event shall the aggregate amount of all of the Incremental Commitments, taken together with any Additional Debt incurred pursuant to Section 7.03(b)(xxii), exceed the greater of (x) $500,000,000 and (y) an additional aggregate amount of Indebtedness such that, after giving pro forma effect to the establishment or incurrence, as the case may be, of all such Incremental Commitments from one (which shall be deemed to include the full amount of any Revolving Facility Increase assuming the full amount of such increase has been drawn), the Consolidated Secured Leverage Ratio shall not be greater than 2.00:1.00 (or, in the case of any Incremental Commitments the proceeds of which shall be used to finance all or more any portion of a Permitted Acquisition, 2.50:1.00), determined on a Pro Forma Basis as of the last day of the fiscal quarter for which financial information was most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or Section 6.01(b); provided that the aggregate Incremental Commitments, taken together with any Additional Debt incurred pursuant to Section 7.03(b)(xxii), shall not exceed $1,000,000,000, (ii) each new Incremental Facility shall be in an aggregate amount of not less than $25,000,000, (iii) other than with respect to any Incremental Commitments the proceeds of which shall be used to finance all or any portion of the consideration for a Permitted Acquisition, each of the conditions set forth in Section 4.02 shall be satisfied after giving effect to the establishment of such Incremental Commitments, (iv) after giving pro forma effect to the establishment or incurrence, as the case may be, of such Incremental Commitments (which shall be deemed to include the full amount of any Revolving Facility Increase assuming the full amount of such increase has been drawn), as of the Increase Date, the Borrower Parties shall be in Pro Forma Compliance with all of the covenants set forth in Section 7.10, determined on a Pro Forma Basis as of the last day of the fiscal quarter for which financial information was most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or Section 6.01(b), (v) (A) except as provided in clause (B), the maturity date of any such Incremental Term Lenders, Loans shall be no earlier than the Latest Maturity Date of the Term B Loans and the Weighted Average Life to Maturity of such Incremental Term Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans (which may or may not include any existing Lender other than Term B-4 and Term B-5 Loans) and (each of which may be entitled B) with respect to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) Incremental Term Loans in an aggregate principal amount not to exceed the sum of (ix) $50,000,000 250,000,000, plus (iiy) an unlimited amountadditional aggregate principal amount equal to the aggregate principal amount of Term A Loans repaid or prepaid (other than any such Term A Loans prepaid or repaid with the proceeds of Indebtedness) by the Borrowers after the Amendment No. 1 Effective Date, so long asbut in any event the additional amount in this clause (y) not to exceed $250,000,000, the maturity date of such Incremental Term Loans shall be no earlier than the Latest Maturity Date of the Term A Loans and the Weighted Average Life to Maturity of such Incremental Term Loans shall be not shorter than the longest Weighted Average Life to Maturity of the Term A Loans, (vi) in the case of this an Incremental Revolving Increase, the Incremental Revolving Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility, (vii) the interest rate margins and floors, fees, discounts, premiums and (subject to clause (iiv)) amortization schedule applicable to any Incremental Term Loans shall be determined by the applicable Borrower and the lenders thereunder; provided that the interest rate margins with respect to any Incremental Term Loans shall not be greater than the interest rate margin with respect to each of the then outstanding Term B Loans plus 0.50% per annum unless the interest rate margin applicable to each of the then outstanding Term B Loans is increased so that the interest rate margin applicable to the Incremental Term Loans does not exceed the interest rate margin applicable to any outstanding Term B Loans by more than 0.50% per annum; provided that in determining the interest rate margin applicable to loans and/or commitments incurred pursuant to each Incremental Term Loan and each applicable Term B Loan, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the applicable Borrower to the Lenders of the applicable Term B Loans or the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), after giving pro forma effect (y) customary arrangement, structuring or other commitment fees payable to the Borrowing Lead Arrangers or Amendment No. 1 Lead Arrangers (or their respective Affiliates) in connection with the applicable Term B Loans or to one or more arrangers in connection with such Incremental Term Loans shall be excluded and (z) if the Incremental Term Loans include an interest rate floor greater than the applicable interest rate floor under the then outstanding Term B Loans (other than Term B-4 Loans or Term B-5 Loans), such differential between interest rate floors shall be equated to the applicable interest rate margin solely for purposes of determining whether the interest rate margin of such Incremental Term Loan Loans is higher than the interest rate margin under the applicable Term B Loans by more than 0.50% and to the application extent the difference in the interest rate floors would cause the interest rate margins of proceeds therefrom (assuming all such Incremental Term Loans to be higher than the interest rate margins for the applicable Term B Loans by more than 0.50%, the interest rate floor (but not in any event the interest rate margin) applicable to each of the then outstanding Term B Loans (other than Term B-4 Loans or Term B-5 Loans) shall be increased to the extent of such differential between interest rate floors; provided, further, that for purposes of this clause (vii), the Term B-1 Loans, Term B-2 Loans, Term B-3 Loans and Additional Term B-1 Loans shall be deemed to have been issued at par, (viii) any Incremental Facility shall rank pari passu in right of payment and of security with the Facilities on terms reasonably satisfactory to the Administrative Agent and none of the Incremental Facilities shall have the benefit of any Guarantee or any Lien or other security except for the Guaranty and Liens under the Loan Commitments were fully drawn Documents for the benefit of the Obligations, and without “netting” (ix) any Incremental Term Loans may have other terms and conditions determined by the cash proceeds Borrowers and the lenders thereunder; provided that to the extent such terms and conditions are not consistent with the Term Loans, as the case may be (except to the extent permitted by clause (v) or (vii) above), they shall be reasonably satisfactory to the Administrative Agent.
(b) Each notice from the Borrowers pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Facility Increase, as applicable. Incremental Term Loans and Revolving Facility Increases may be made by any existing Lender (it being understood that no existing Lender will have a right or obligation to make a portion of any Incremental Term Loans, and after giving pro forma effect Loan or Revolving Facility Increase) or by any other Eligible Assignee that agrees to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each make an Incremental Term LenderLoan or Revolving Facility Increase; provided that, if not already a Lender hereunderto the extent the Administrative Agent’s consent would be required for an assignment to such Eligible Assignee pursuant to Section 10.07, each such Eligible Assignee shall be subject to the approval of the Administrative Agent and, if such Eligible Assignee will provide any Revolving Facility Increase, the L/C Issuers and Swing Line Lender (such approval in its discretion (each case not to be unreasonably withheld, conditioned withheld or delayed) and the Borrower, as applicable (any such other Eligible Assignee being called an “Additional Lender”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and Revolving Facility Increases shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the Incremental Term other Loan Assumption Agreement Documents, executed by the Parent Guarantor, the Borrowers, each Lender agreeing to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees thatAmendment may, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the any other Lenders hereto Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerBorrowers, to effectuate effect the provisions of this Section 2.15, Section. The effectiveness of (and, in the case of any Incremental Amendment for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no an Incremental Term Loan Commitment or a Revolving Facility Increase, the borrowing thereunder) any Incremental Amendment shall become effective under this Section 2.15 unless (i) be subject to the satisfaction on the date Increase Date of such effectiveness, each of (x) the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate deemed to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date refer to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence effective date of such Incremental Term Loans, and (iiAmendment) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) such other conditions as the Specified Representationsparties thereto shall agree; provided, however, clause (x) shall not apply to the effectiveness of an Incremental Amendment establishing Incremental Commitments the proceeds of which shall be true and correct both at the time of signing used to finance all or any portion of the relevant acquisition or similar agreement and at consideration for a Permitted Acquisition. The Borrower will use the time proceeds of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans and borrowings under any Revolving Facility Increase for any purpose not prohibited by the date and time required hereunder with respect to the applicable Type of Loanthis Agreement.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, by written notice From time to the Administrative Agent at any time on and after the Closing Restatement Effective Date and prior to the Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Tranche 1 Termination Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement no Default or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto continuing, the Borrowers may, upon at least 30 days' notice to the Administrative Agent (which shall promptly provide a copy of such notice to the Tranche 1 Lenders), propose to increase the aggregate amount of the Tranche 1 Commitments by an amount that (i) is not less than $25,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof, with respect to any such request and (Bii) when aggregated with all prior and concurrent increases in the Tranche 1 Commitments pursuant to this Section 2.20(a), is not in excess of $100,000,000 plus the aggregate amount of unused Tranche 1 Commitments of Defaulting Lenders terminated in accordance with Section 2.22(d). The Borrowers may increase the aggregate amount of the Tranche 1 Commitments by (x) having one or more Eligible Assignees (each, an "Additional Tranche 1 Lender") become party to this Agreement, (y) agreeing with any Tranche 1 Lender (with the consent of such Lender in its sole discretion) to increase its Tranche 1 Commitment hereunder or (z) a combination of the procedures described in clauses (x) and (y) of this sentence; provided that the aggregate increase in the Commitments shall not exceed the increase proposed by the Borrowers.
(b) From time to time on and after the Restatement Effective Date and prior to the Tranche 2 Termination Date so long as no Default or Event of Default shall have occurred and be continuing, the Borrowers may, upon at least 30 days' notice to the Administrative Agent (which shall promptly provide a copy of such notice to the Tranche 2 Lenders), propose to increase the aggregate amount of the Tranche 2 Commitments by an amount that (i) is not less than $25,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof, with respect 8470562v6 24740.00061 to any such request and (ii) when aggregated with all prior and concurrent increases in the Tranche 2 Commitments pursuant to this Section 2.20(b), is not in excess of $200,000,000 plus the aggregate amount of unused Tranche 2 Commitments of Defaulting Lenders terminated in accordance with Section 2.22(d). The Borrowers may increase the aggregate amount of the Tranche 2 Commitments by (x) having one or more Eligible Assignees (each, an "Additional Tranche 2 Lender" and collectively with the Additional Tranche 1 Lenders, the "Additional Lenders") become party to this Agreement, (y) agreeing with any Tranche 2 Lender (with the consent of such Lender in its sole discretion) to increase its Tranche 2 Commitment hereunder or (z) a combination of the procedures described in clauses (x) and (y) of this sentence; provided that the aggregate increase in the Commitments shall not exceed the increase proposed by the Borrowers.
(c) No increase in the Commitments pursuant to this Section 2.20 shall be effective unless (i) each of the representations and warranties contained herein in Article V and in the other Loan Credit Documents shall be true and correct in all material respects (except for those representations to the extent any such representation and warranties that are conditioned warranty is qualified by “materiality” materiality or “material adverse effect”reference to Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects) on and as of the date of such date to increase, with the same extent effect as though if made on and as of that such date, both immediately before and after giving effect to such increase, except to the extent any such representations and warranties specifically relate representation or warranty is expressly stated to an earlier have been made as of a specific date, in which case such representations and warranties representation or warranty shall have been be true and correct in all material respects (except for those representations to the extent any such representation and warranties that are conditioned warranty is qualified by “materiality” materiality or “material adverse effect”reference to Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) no Default or Event of Default shall have occurred and be continuing on the representations date of such increase, both immediately before and warranties shall be limited after giving effect to such increase.
(xd) Upon any increase in the representation and warranty that amount of the Loans incurred Tranche 1 Commitments or Tranche 2 Commitments, as the case may be, pursuant to this Section 2.20 (each, an "Additional Commitment"):
(i) Each Additional Lender or existing Lender agreeing to increase its Commitments pursuant to this Section 2.20 (each, an "Increasing Lender") shall enter into a Joinder Agreement are senior Indebtedness pursuant to which such Additional Lender and/or Increasing Lender shall, as of the Borrower and effective date, undertake an Additional Commitment (y) or, in the Specified Representationscase of an Increasing Lender, pursuant to which such Increasing Lender's Commitment shall be true increased in the agreed amount on such date) and correct both at such Additional Lender shall thereupon become (or, if an Increasing Lender, continue to be) a "Lender" for all purposes hereof;
(ii) The Borrowers shall in the time event of signing of an increase in the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicableTranche 1 Commitments, in coordination with the Administrative Agent shall have received a Notice of Borrowing Agent, repay all outstanding Loans and incur additional Loans from other Tranche 1 Lenders in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees each case so that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included Tranche 1 Lenders participate in each Borrowing of outstanding Term Loans on a pro rata basis, and on the Borrower agrees that Section 3.02 shall apply basis of their respective Tranche 1 Commitments (after giving effect to any conversion increase in the Tranche 1 Commitments pursuant to this Section 2.20) and amounts payable under Section 2.18 as 8470562v6 24740.00061 a result of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) actions required to be made after the making of such Incremental Term Loans taken under this Section 2.20, shall be ratably increased paid in full by the aggregate principal amount Borrowers;
(iii) If any such Additional Lender is a Foreign Lender, such Additional Lender shall deliver the forms required by Section 2.17(d); and
(iv) Any Additional Commitment shall be subject to the prior written approval of such Incremental Term Loanseach Fronting Lender.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, may by written notice to the Administrative Agent at elect to seek (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments of any time after Class and/or (y) commitments (“Additional Term Commitments”) to increase the Closing Date and prior aggregate principal amount of any existing Class of Term Loans or to the Term Loan Maturity Date, request on establish one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each new Classes of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Term Loan Commitments being requested Cap;
(which ii) any such increase or any new Class shall be in minimum increments an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 and a minimum in excess thereof; provided that such amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not may be less than 15 days nor more than 60 days after $10,000,000 if such amount represents all remaining availability under the date of such notice, unless otherwise agreed to by limit set forth in the Administrative Agent) and preceding clause (i);
(iii) whether such Incremental Term Loan Commitments are no existing Lender shall be required to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).provide any Additional Commitments;
(biv) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may the conditions set forth in Section 4.02 shall be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, satisfied;
(iv) the final maturity date of any Other Additional Term Loans shall be no earlier than the Term Loan Latest Maturity Date and Date;
(iivi) the weighted average life Additional Term Loans shall have a Weighted Average Life to maturity Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of any Other each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(vii) the interest margins for the Additional Term Loans shall be no shorter determined by the Borrower and the Lenders of such Additional Term Loans; provided that in the event that the All-In Yield for any Additional Term Loans is greater than the remaining weighted average life All-In Yield for Outstanding Term Loans by more than 50 basis points, then the Applicable Rate for such Additional Term Loans shall be increased to maturity of the Closing Date extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for Outstanding Term Loans, and provided, further, that, if the Applicable Rate for the Initial Yield on Revolving Commitments (and, to the extent specified in any Additional Credit Extension Amendment for Revolving Commitments of any other Class, such Other other Class of Revolving Commitments) shall be increased by a like amount;
(viii) the security interest and guaranties benefiting the Additional Term Loans exceeds by more than 0.50% and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the sum of (A) existing Facilities; provided that the margin then in effect for security interests and guaranties benefiting the Additional Term Loans that may rank junior in right of payment or security to the Term Loans incurred on the Closing Date, or such Additional Term Loans may be unsecured, so long as (x) any such Additional Term Loans are Eurodollar established as a separate sub-facility from the Term Loans plus (B) one-quarter of the amount of such upfront fee paid incurred on the Closing Date in respect of the and (y) any such Additional Term Loans ranking junior in right of payment or security will be subordinated on the terms set forth in a Junior Lien Intercreditor Agreement;
(the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of ix) any Additional Term Loans shall automatically be increased share on a pro rata basis in any voluntary and mandatory prepayments with the Outstanding Term Loans or, if agreed to by the Yield Differential, effective upon the making lenders of the Other Additional Term Loans. As used , on a less than pro rata basis (but in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of no event on a greater than pro rata basis); and
(x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which any Additional Revolving Commitment shall be increased by on the amount any “LIBOR floor” same terms and pursuant to documentation applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount Revolving Commitments of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Class that is being increased, and any Additional Term Loans and (B) four. The other terms of Additional Term Commitments shall be pursuant to documentation applicable to the Incremental Outstanding Term Loans and the Incremental Term Loan Assumption Agreement on terms to be determined, provided that, to the extent such terms are not consistent with the terms applicable Outstanding Term Loans (except to the Term Loans hereunder extent permitted by clause (v), (vi), (vii) or (ix) above), they shall otherwise be reasonably satisfactory to the Administrative Agent; and.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof), (i) the representations and warranties contained in Article III and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such Incremental Term Loan Assumption Agreement contains any covenantsrepresentations and warranties specifically refer to an earlier date, events in which case they shall have been true and correct in all material respects as of defaultsuch earlier date, representations or warranties or other rights or provisions and except that place greater restrictions on the Borrower or any for purposes of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loansthis Section 2.20(b), the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warrantieswarranties contained in Sections 3.04(a), (b) and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions (c) shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandisto refer to the most recent financial statements furnished pursuant to Section 5.01(a) and (b), as if applicable, (ii) subject to the second to last sentence of Section 4.02, no Default or Event of Default exists and (iii) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments are fully set forth herein, drawn and without any further action required on netting the part cash proceeds of any Person effective Additional Commitments in calculating the First Lien Net Leverage Ratio) as of the date last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been or were required to have been delivered pursuant to Section 5.01(a) or (b) (only if such Incremental Financial Performance Covenant would be applicable at the time).
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Person with an Additional Term Commitment shall make an Additional Term Loan Assumption Agreementto the Borrower in a principal amount equal to such Person’s Additional Term Commitment. The Administrative Agent Borrower shall promptly notify each Lender as prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent (but only to the extent) necessary to reflect keep the existence outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate effect the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing2.20.
(e) Both immediately before and immediately after giving effect to This Section 2.20 shall supersede any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing provisions in Section 2.18 or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date Section 9.02 to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loancontrary.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, may by written notice to the Administrative Agent at elect to seek commitments (“Additional Commitments”) to increase the aggregate principal amount of any time after the Closing Date and prior existing Class of Loans or to the Term Loan Maturity Date, request on establish one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, new Classes of Loans (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Additional Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith”), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Term Loan Commitments being requested Cap;
(which ii) any such increase or any new Class shall be in minimum increments an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 and a minimum in excess thereof; provided that such amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not may be less than 15 days nor more than 60 days after $10,000,000 if such amount represents all remaining availability under the date of such notice, unless otherwise agreed to by limit set forth in the Administrative Agent) and preceding clause (i);
(iii) whether such Incremental Term Loan Commitments are no existing Lender shall be required to provide any Additional Commitments;
(iv) each of the following conditions required to be Term Commitments or commitments to make term loans with terms different from set forth in the Term Loans (“Other Term Loans”).applicable Additional Credit Extension Amendment shall have been satisfied;
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (iv) the final maturity date of any Other Additional Term Loans shall be no earlier than the Maturity Date of the Term B-5 Loans;
(vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of the Term B-5 Loans;
(vii) the interest margins for the Additional Term Loans shall be determined by Borrower and the Lenders of such Additional Term Loans; provided that in the event that the Weighted Average Yield for any Additional Term Loans is greater than the Weighted Average Yield for the Term B-5 Loans by more than 50 basis points, then the Applicable Rate for the Term B-5 Loans shall be increased to the extent necessary so that the Weighted Average Yield for such Additional Term Loans is not more than 50 basis points higher than the Weighted Average Yield for the Term B-5 Loans;
(viii) all other terms of the Additional Term Loans (other than as set forth in clauses (iv) through (vii) above), if more restrictive, taken as a whole, than the terms of the Term B-5 Loans (as determined by the Borrower in its reasonable business judgment), such other terms shall be reasonably acceptable to the Borrower and the Administrative Agent;
(ix) the security interest and guaranties benefiting the Additional Term Loans (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing credit facilities provided for herein; and
(x) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Term B-5 Loans or, if agreed to by the lenders of Additional Term Loans, on a less than pro rata basis (but in no event on a greater than pro rata basis).
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which Borrower proposes that the Additional Commitments shall be effective, which shall be a date reasonably acceptable to Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, Borrower shall deliver to Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by an Authorized Officer of Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof), the condition set forth in Section 2.14(a)(iv) is satisfied.
(c) On each Additional Commitments Effective Date with respect to any Additional Commitment, each Person with an Additional Commitment shall make an Additional Term Loan Maturity Date to Borrower in a principal amount equal to such Person’s Additional Commitment.
(d) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may issue one or more series of Incremental Equivalent Debt in an aggregate principal amount not to exceed, as of the date of and after giving effect to the issuance of any such Incremental Equivalent Debt, the Incremental Cap.
(e) The issuance of any Incremental Equivalent Debt pursuant to this Section 2.14, shall (i) in all cases, be subject to the terms and conditions applicable to Additional Commitments set forth under Sections 2.14(a)(i), (a)(ii), (a)(iii), (a)(v), (a)(vi), (a)(vii) (if such Incremental Equivalent Debt is in the form of term loans secured on a pari passu basis with the Term B-5 Loans) and (a)(viii), as if set forth in this Section 2.14(e), mutatis mutandis (and, for the avoidance of doubt, the interest rate, upfront fees and original issue discount for any Incremental Equivalent Debt shall be as determined by the Borrower), (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties guarantees and other terms of such Incremental Equivalent Debt shall be customary for similar debt instruments in light of then-prevailing market conditions at the time of issuance and in any event not materially more restrictive, taken as a whole, to the Borrower and the other Restricted Subsidiaries than those set forth in this Agreement (other than with respect to interest rate and redemption provisions), except for covenants or other rights provisions applicable only to periods after the Latest Maturity Date at the time of issuance, it being understood that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent prior to or provisions at the incurrence of such Incremental Equivalent Debt, together with a reasonably detailed description of the material terms and conditions of such Incremental Equivalent Debt or drafts of the documentation relating thereto, stating that place greater restrictions the Borrower has determined in good faith that such terms and conditions of the Incremental Equivalent Debt satisfy the requirement set forth in this clause (e), shall be conclusive evidence that such terms and conditions have been satisfied, (iii) such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than a Loan Party, (iv) in the case of Incremental Equivalent Debt that is secured, the obligations in respect thereof shall not be secured by any Lien on any asset the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making Restricted Subsidiary other than any asset constituting Collateral, (v) if such Other Term LoansIncremental Equivalent Debt is secured, the existing Lenders such Incremental Equivalent Debt shall be entitled subject to the benefit of such covenants, events of default, representations and warrantiesan applicable Intercreditor Agreement, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on (vi) the part of any Person effective as of the date terms of such Incremental Term Loan Assumption AgreementEquivalent Debt do not provide for any scheduled amortization or mandatory repayment, mandatory redemption, mandatory offer to purchase or sinking fund obligation prior to the date that is 91 days after the Latest Maturity Date at the time of incurrence, issuance or obtainment of such Incremental Equivalent Debt, other than customary prepayments, repurchases or redemptions of or offers to prepay, redeem or repurchase upon a change of control, asset sale event or casualty or condemnation event, customary prepayments, redemptions or repurchases or offers to prepay, redeem or repurchase based on excess cash flow (in the case of loans) and customary acceleration rights upon an event of default.
(f) This Section 2.14 shall supersede any provisions in Section 3.06 or Section 10.01 to the contrary. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement Additional Commitments shall be amended to documented by an Additional Credit Extension Amendment executed by the extent Persons providing the Additional Commitments (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect Persons specified in the definition of “Additional Credit Extension Amendment” but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate effect the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto2.14.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Sources: Amendment Agreement (Polyone Corp)
Increase in Commitments. (a) The So long as (x) no Default exists or would exist after giving effect to the making of the Incremental Term Loans or Incremental Revolving Loans referred to below and the use of proceeds therefrom and (y) after giving effect to the making of the Incremental Term Loans or Incremental Revolving Loans referred to below and the use of proceeds therefrom, Borrower maywould be in compliance with the Financial Covenants on a pro forma basis on such date and for the most recent fiscal quarter for which financial statements have been delivered in accordance with Section 5.01 after giving effect on a pro forma basis to any related adjustment events, by including any acquisitions or dispositions after the beginning of the relevant calculation period but prior to or simultaneous with the borrowing of such Incremental Term Loans or Incremental Revolving Loans, then upon written notice to the Administrative Agent at any Agent, Borrower may from time after to time request (i) additional term loans (the Closing Date “Incremental Term Loans” and prior to the Term Loan Maturity Daterelated commitments, request on one or more occasions, up to three in the aggregate, “Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)Commitments”) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of 400,000,000; provided that any such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which increase shall be in minimum increments an aggregate amount of $50,000,000 or any whole multiple of $1,000,000 and a minimum amount of $5,000,000)in excess thereof, (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) additional revolving loans (the weighted average life “Incremental Revolving Loans” and the related commitments, the “Incremental Revolving Loan Commitments”) in an aggregate principal amount not to maturity of exceed $100,000,000; provided that any Other Term Loans such increase shall be no shorter than the remaining weighted average life to maturity in an aggregate amount of the Closing Date Term Loans, and $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred any existing Lender approached to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than provide all or a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms portion of the Incremental Term Loans and related commitments or Incremental Revolving Loans and related commitments may elect or decline, in its sole discretion, to provide such loans and commitments. The Incremental Term Loans (A) shall rank pari passu in right of payment and right of security in respect of the Collateral with the Term B Loans and (B) other than amortization, pricing and maturity date, shall have the same terms as Term B Loans existing immediately prior to the effectiveness of the amendment creating such Incremental Term Loans; provided that (x) if the interest rate spreads relating to such new Incremental Term Loans exceed the Applicable Rate at any pricing level for the Term B Loans (including any upfront fees or original issue discount payable to the Lenders providing such Incremental Term Loans), then the Applicable Rate for the Term B Loans shall be adjusted to be equal to such interest rate spreads, (y) the Incremental Term Loans shall not have a final maturity date earlier than the Term B Loan Assumption Maturity Date, and (z) the Incremental Term Loans shall not have a Weighted Average Life to Maturity that is shorter than the then-remaining Weighted Average Life to Maturity of the Term B Loans. Any Term B Lender or additional bank or financial institution electing to make available an Incremental Term Loan Commitment (an “Incremental Term Lender”) shall become a Lender or make its Incremental Term Loan Commitment available, as the case may be, under this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement giving effect to the extent not consistent with modifications permitted by this Section 2.21 and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Incremental Term Lender and the Administrative Agent, and to any other documentation, in each case on terms applicable to the Term Loans hereunder shall otherwise be reasonably and documentation satisfactory to the Administrative Agent; and, to Agent and the extent that such Lead Arranger. The Incremental Term Loan Assumption Agreement contains any covenants, events Revolving Loans (A) shall rank pari passu in right of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any payment and right of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as security in respect of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent Collateral with the Revolving Loans and (B) other than pricing and maturity date, shall promptly notify each Lender have the same terms as Revolving Loans existing immediately prior to the effectiveness of the amendment creating such Incremental Revolving Loans; provided that (x) if the interest rate spreads and unused commitment fees relating to such new Incremental Revolving Loans exceed the Applicable Rate and unused commitment fees at any pricing level for the Revolving Loans (including any upfront fees or original issue discount payable to the Lenders providing such Incremental Revolving Loans), then the Applicable Rate and unused commitment fees for the Revolving Loans shall be adjusted to be equal to such interest rate spreads, and (y) the Incremental Revolving Loans shall not have a final maturity date earlier than the applicable maturity date of the Revolving Loans. Any Revolving Lender or additional bank or financial institution electing to make available an Incremental Revolving Commitment (an “Incremental Revolving Lender”) shall become a Lender or make its Incremental Revolving Commitment available, as the case may be, under this Agreement, pursuant to an Incremental Facility Amendment to this Agreement giving effect to the modifications permitted by this Section 2.21 and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Incremental Term Loan Assumption Agreement or such Revolving Lender and the Administrative Agent, and to any other joinder agreement or amendment. Each of the parties hereto hereby agrees thatdocumentation, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended in each case on terms and documentation satisfactory to the extent (but only to Administrative Agent and the extent) necessary to reflect the existence and terms of the Lead Arranger. An Incremental Term Loan Commitment and any other joinder agreement or amendment may Facility Amendment may, without the consent of the any other Lenders hereto Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effectuate effect the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto2.21.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, by written notice to the Administrative Agent at any time after in substantially the Closing Date and prior to the Term Loan Maturity Dateform of Exhibit “D”, request on one or more occasions, up to three in that the aggregate, Incremental Term Loan Tranche A Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may and the Tranche B Commitments be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in increased by an aggregate principal amount not to exceed $400,000,000; provided that the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of Borrower may not make more than 3 such Incremental Term Loan requests and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, request shall be subject to the approval increase both Classes of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed)Commitments by an equal amount. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested aggregate increase (which shall be in a minimum aggregate amount of $100,000,000 and in minimum aggregate increments of $1,000,000 and a minimum amount of $5,000,0005,000,000 above that amount, in each case, divided equally between the two Classes), (ii) and the date on which such Incremental Term Loan Commitments are increase is requested to become effective (which shall be not be less than 15 10 days nor more than 60 days after the date of such noticenotice and which, unless otherwise agreed in any event, must be on or prior to the then applicable Commitment Termination Dates, provided that no increase in the Commitments may be requested pursuant to this Section 2.9 on or prior to July 1, 2014). Upon the receipt of such request by the Administrative Agent, the Administrative Agent shall give notice promptly to each Bank substantially in the form of Exhibit “E”, which notice will offer each such Bank the opportunity to increase its Commitment of each Class by its applicable Pro Rata Share of the proposed increased amount for such Class. Each such Bank shall, by notice to the Borrower and the Administrative Agent substantially in the form of Exhibit “F”, given not more than 10 days after the date of the Administrative Agent’s notice, either agree to increase its Commitments by all or a portion (provided such portion is divided equally between the Classes) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from of the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders offered amount (each of which may be entitled to agree Bank so agreeing being an “Increasing Bank”) or decline to participate increase such Commitments (and any Bank that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase such Commitments) (each Bank so declining or being deemed to have declined being a “Non-Increasing Bank”). For greater certainty, a Bank may only agree to increase both of its Commitments or decline to increase both of its Commitments. In the event that, on the 10th day after the Administrative Agent shall have delivered a notice pursuant to the third sentence of this paragraph, the Increasing Banks shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase requested by the Borrower, the Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an “Augmenting Bank”), which may include any Bank, to extend Commitments or increase their existing Commitments in its sole discretion if so offered an aggregate amount equal to the opportunity unsubscribed amount; provided, however, that each Augmenting Bank shall extend or increase Commitments of each Class by an equal amount, each Augmenting Bank that is not an existing Bank shall be subject to do so) the prior written approval of the Administrative Agent (which approvals shall not be unreasonably withheld or delayed), and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The the Borrower and each Incremental Term Lender Augmenting Bank that is not an existing Bank shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan such Augmenting Bank’s Commitment of and/or its status as a Bank hereunder. Any such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to increase may be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier in an amount that is less than the Term Loan Maturity Date and (ii) increase requested by the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, Borrower if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred Borrower is unable to herein as the “Yield Differential”)arrange for, then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differentialor chooses not to arrange for, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) fourAugmenting Banks. The other terms of the Incremental Term Loans Borrower and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as execute an amendment to Exhibit “H” evidencing the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. revised Commitments.
(b) Each of the parties hereto hereby agrees that, upon that the effectiveness of Administrative Agent may take any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents all actions as may be reasonably necessary or appropriateto ensure that, after giving effect to any increase pursuant to this Section 2.9, the Accommodations Outstanding of each Class (if any) are held by the Banks in accordance with their new applicable Pro Rata Shares. This may be accomplished at the reasonable opinion discretion of the Administrative Agent and Agent, following consultation with the Borrower, (i) by requiring the Accommodations Outstanding of a Class to effectuate be prepaid with the provisions proceeds of this Section 2.15a new Accommodation, and(ii) by causing Non-Increasing Banks to assign portions of their Accommodations Outstanding of a Class to Increasing Banks and/or Augmenting Banks, for a consideration that is not less than all principal and interest and fees accrued as to such Accommodations up to the avoidance effective date of doubt, such assignment or (iii) by any combination of the foregoing. Any prepayment or assignment described in this Section 2.15(bclause (b) shall supersede any provisions be subject to the contrary in Section 11.12. Any such deemed amendment may 6.3, but shall otherwise be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties heretowithout premium or penalty.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment increase in the Commitments shall become effective under this Section 2.15 2.9 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromincrease, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto will result from the increase in such Commitments as set forth herein and (B) the representations and warranties contained herein and made by the Borrower in the other Loan Documents Section 8 shall be true and correct on and as of the date of the increase in all material respects (except for those representations the Commitments with the same force and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) effect as if made on and as of such date (unless stated to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate solely to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and respects as of such earlier date; provided that), notwithstanding anything (ii) the Borrower Debt Ratings assigned by S&P, Moody’s and DBRS to the contrary Index Debt shall be equal to or better than their respective ratings of such Borrower’s Index Debt in this Section 2.15 effect as of the Effective Date (after giving effect to the incurrence of the Commitment increase or Accommodations, as the case may be), (iii) the Administrative Agent shall have received a compliance certificate certifying and showing (in any other provision reasonable detail and with appropriate calculations and computations in all respects reasonably satisfactory to the Administrative Agent) that (A) each of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition conditions set forth in the preceding clauses (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) have been satisfied and (B) on a historical pro forma basis (after giving effect to the representations and warranties shall incurrence of the applicable Commitment increase or Accommodations, as the case may be) as of the last day of the most recently completed Six Month Period with respect to which, pursuant to Section 9.1, financial statements have been, or are required to have been, delivered by the Borrower, the Borrower would be limited to in compliance with Section 9.10 as of the last day of such Six Month Period, (xiv) in the representation and warranty event that a proposed increase in the Loans incurred Commitments pursuant to this Agreement are senior Indebtedness Section 2.9 would result in the aggregate amount of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicableincreases in Commitments pursuant to this Section 2.9 exceeding $375,000,000, the Administrative Agent shall have received a Notice of Borrowing written confirmation from HMC that, upon and after the increase in respect of any Incremental Term Loans the applicable Commitments, all Accommodations Outstanding and all interest hereunder will constitute “Debt” as such term is used in the HMC Support Agreement together with the certifications provided by the date Borrower pursuant to Section 7.2(d) and (v) the Administrative Agent shall have received all fees to be mutually agreed between the Borrower and the Administrative Agent.
(d) Notwithstanding anything to the contrary in this Section 2.9, if, at the time required hereunder that a request is made pursuant to this Section 2.9(a) or prior to the time such request is given effect, a Class of Commitments has been terminated or a Commitment Termination Date has occurred with respect to a Class, such request shall apply with respect to the applicable Type remaining Class of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any Commitments and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that this Section 3.02 2.9 shall apply mutatis mutandis to such request and any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loansincrease.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, may by written notice to the Administrative Agent at elect to seek commitments (“Additional Commitments”) to increase the aggregate principal amount of any time after the Closing Date and prior existing Class of Loans or to the Term Loan Maturity Date, request on establish one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, new Classes of Loans (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Additional Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith”), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Term Loan Commitments being requested Cap;
(which ii) any such increase or any new Class shall be in minimum increments an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 and a minimum in excess thereof; provided that such amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not may be less than 15 days nor more than 60 days after $10,000,000 if such amount represents all remaining availability under the date of such notice, unless otherwise agreed to by limit set forth in the Administrative Agent) and preceding clause (i);
(iii) whether such Incremental Term Loan Commitments are no existing Lender shall be required to provide any Additional Commitments;
(iv) each of the following conditions required to be Term Commitments or commitments to make term loans with terms different from set forth in the Term Loans (“Other Term Loans”).applicable Additional Credit Extension Amendment shall have been satisfied;
(bv) The Borrower may seek Incremental other than with respect to Customary Term Loan Commitments from existing Lenders (each of which may be entitled to agree A Loans, any bridge or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional bankssimilar loan or facility or revolving credit facilities, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Additional Term Loans shall be no earlier than the Term Loan Maturity Date of the Term B-89 Loans;
(vi) other than with respect to Customary Term A Loans, any bridge or similar loan or facility or revolving credit facilities, the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of the Term B-89 Loans;
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Lenders of such Additional Term Loans; provided that in the event that the Weighted Average Yield for any floating rate, Dollar-denominated syndicated Additional Term Loans (other than with respect to Customary Term A Loans or revolving credit facilities) incurred within twenty-four (24) months after the Amendment No. 8 Effective Date (other than (x) any Additional Term Loans established for the primary purposes of financing a Permitted Acquisition or other Investment and (y) Additional Term Loans in an aggregate amount not to exceed the greater of (i) $725.0 million and (ii) an amount equal to 100% of Consolidated Cash Flow Available for Fixed Charges for the weighted average life to maturity of any Other Term Loans shall be no shorter Four Quarter Period) is greater than the remaining weighted average life to maturity of Weighted Average Yield for the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term B-89 Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”)50 basis points, then the Applicable Loan Margin then in effect Rate for each such affected Type of the Term B-89 Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by to the amount any “LIBOR floor” applicable to extent necessary so that the Weighted Average Yield for such Other Additional Term Loans on is not more than 50 basis points higher than the date such Other Weighted Average Yield for the Term Loans are made exceeds the Adjusted Eurodollar RateB-89 Loans;
(viii) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The all other terms of the Incremental Additional Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with (other than as set forth in clauses (iv) through (vii) above), if more restrictive, taken as a whole, than the terms applicable to the Term B-89 Loans hereunder (as determined by the Borrower in its reasonable business judgment), such other terms shall otherwise be reasonably satisfactory acceptable to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent (it being understood and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) agreed that any Customary Term A Loans and revolving credit facilities may have one or more financial compliance covenants and such covenant shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may not be memorialized in writing by the Administrative Agent with the Borrower’s consent (not determined to be unreasonably withheld) and furnished to the other parties hereto.more restrictive);
(cix) All Incremental the security interest and guaranties benefiting the Additional Term Loans shall (and advances of credit thereunder) will rank pari passu in rights right of payment, prepayment, voting, security, payment and lien priorities security with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.existing credit facilities provided for herein; and
(dx) Notwithstanding the foregoing, no Incremental any Additional Term Loan Commitment Loans shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance share on a pro forma rata basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any mandatory prepayments with the Term B-89 Loans (other provision of than any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result mandatory prepayment resulting from the incurrence of such Incremental Refinancing Term Loans or Refinancing Equivalent Debt that is incurred to refinance a specific Class of Loans) or, if agreed to by the lenders of Additional Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a less than pro rata basis (but in no event on a greater than pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans).
Appears in 1 contract
Increase in Commitments. (a) The Borrower maymay request (in writing) Incremental Commitments in an aggregate amount not to exceed, by written notice to the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, the greater of (i) $500,000,000 (minus the aggregate principal amount of all Indebtedness issued pursuant to Section 8.2(n) after the 2011 Restatement Date but on or prior to the date of such request, but not to be reduced by the aggregate principal amount of any such Incremental Term Loan Commitments Loans, or Indebtedness issued pursuant to Section 8.2(n), the proceeds of which are applied to the refinancing of all or any portion of the Tranche B Term Loans) and (ii) an amount such that the Consolidated Senior Secured Leverage Ratio for the Borrower’s most recently ended four full Fiscal Quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred would have been no greater than 3.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional secured Indebtedness had been incurred at the beginning of such four-Fiscal Quarter period, in increments of (x) no less than $75,000,000 (or such lesser amount if the remaining available Incremental Commitment pursuant to this Section 2.4 is less than $75,000,000) at any one time with respect to Incremental Term Loans and (y) no less than $5,000,000 (or such lesser amount if the remaining available Incremental Commitment pursuant to this Section 2.4 is less than $5,000,000) at any one time with respect to Incremental Revolving Loans, from one or more Incremental Term Lenders, Lenders (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion approved by the Administrative Agent if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if Lender is not already a Revolving Lender hereunder, shall and is to be subject to a Revolving Lender after the approval effective date of the Administrative Agent in its discretion (applicable Incremental Commitment Agreement, which approval shall not to be unreasonably withheld, conditioned or delayed)) willing to provide such Incremental Commitments. Such notice Requests for such Incremental Commitments may be, at the Borrower’s option, for Incremental Revolving Loans (at any time prior to the later of the (i) Revolving Termination Date and (ii) the latest Extended Revolving Termination Date, if any) and/or Incremental Term Loans. In the event the Borrower shall request Incremental Term Loans, such request shall set forth (i) the amount of the Incremental Term Loan Commitments Loans being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000)requested, (ii) the date on which such Incremental Term Loan Commitments Loans are requested to become effective be made, (iii) any requested differences between the Incremental Term Loans and the existing Tranche B-3 Term Loans (which shall not be less effective until set forth in an executed Incremental Commitment Agreement executed by the Group Members and each applicable Incremental Lender), provided, that in any event (A) the Weighted Average Life to Maturity of all Incremental Term Loans shall be no shorter than 15 days nor more than 60 days after the date Weighted Average Life to Maturity of the Tranche B-3 Term Loans at the time of the borrowing of such noticeIncremental Term Loan, unless otherwise agreed to by the Administrative Agent) and (iiiB) the Maturity Date of any Incremental Term Loans shall be no shorter than the final maturity of the Tranche B-3 Term Loans, and (iv) whether such Incremental Term Loan Commitments Loans are to be have the same yield (taking into account the interest rate margin and after giving effect to all upfront fees or similar fees on original issue discount (“OID”) as to the Tranche B-1 Term Commitments Loans or commitments whether such Incremental Term Loans are to make term loans with terms have a different from yield than the Tranche B-1 Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, provided that, without if the prior written consent of the Required Lenders, (i) the final maturity date yield in respect of any Other Term Loans shall be no earlier than Loan exceeds the Term Loan Maturity Date and (ii) yield for the weighted average life to maturity of any Other Tranche B-1 Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% 0.25%, the sum of (A) Applicable Margin for the margin then in effect for Tranche B-1 Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.Tranche
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Metropcs Communications Inc)
Increase in Commitments. (a) The Borrower may, by written notice From time to the Administrative Agent at any time on and after the Closing Restatement Effective Date and prior to the Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Tranche 1 Termination Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement no Default or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and continuing, the Borrowers may, upon at least 30 days’ notice to the Administrative Agent (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as promptly provide a copy of such date notice to the same extent as though made on and as Tranche 1 Lenders), propose to increase the aggregate amount of the Tranche 1 Commitments by an amount that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event is not less than $25,000,000 or, if greater, an integral multiple of Default under Section 8.01(a) or (i) exists or would result from the incurrence of $1,000,000 in excess thereof, with respect to any such Incremental Term Loans, request and (ii) when aggregated with all prior and concurrent increases in the representations and warranties shall be limited Tranche 1 Commitments pursuant to this Section 2.20(a), is not in excess of $100,000,000 plus the aggregate amount of unused Tranche 1 Commitments of Defaulting Lenders terminated in accordance with Section 2.22(d). The Borrowers may increase the aggregate amount of the Tranche 1 Commitments by (x) the representation and warranty that the Loans incurred pursuant having one or more Eligible Assignees (each, an “Additional Tranche 1 Lender”) become party to this Agreement are senior Indebtedness Agreement, (y) agreeing with any Tranche 1 Lender (with the consent of such Lender in its sole discretion) to increase its Tranche 1 Commitment hereunder or (z) a combination of the Borrower procedures described in clauses (x) and (y) of this sentence; provided that the Specified Representationsaggregate increase in the Commitments shall not exceed the increase proposed by the Borrowers.
(b) From time to time on and after the Restatement Effective Date and prior to the Tranche 2 Termination Date so long as no Default or Event of Default shall have occurred and be continuing, which shall be true and correct both the Borrowers may, upon at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, least 30 days’ notice to the Administrative Agent (which shall have received promptly provide a Notice copy of Borrowing such notice to the Tranche 2 Lenders), propose to increase the aggregate amount of the Tranche 2 Commitments by an amount that (i) is not less than $25,000,000 or, if greater, an integral multiple of $1,000,000 in respect of any Incremental Term Loans by the date and time required hereunder excess thereof, with respect to any such request and (ii) when aggregated with all prior and concurrent increases in the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary Tranche 2 Commitments pursuant to ensure that all Incremental Term Loans (other than Other Term Loansthis Section 2.20(b), when originally made, are included is not in each Borrowing excess of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by $200,000,000 plus the aggregate principal amount of such Incremental Term Loans.unused Tranche 2 Commitments of Defaulting Lenders terminated in accordance with Section 2.22(d). The Borrowers may increase the aggregate amount of the
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Increase in Commitments. (a) The Borrower mayRequest for Increase or a Term Loan. Provided there exists no Default, by upon written notice to the Administrative Agent at any and the Lenders, the Borrower may from time after the Closing Date and prior to the Term Loan Maturity Datetime, request on one or more occasions, up to three an increase in the aggregate, Incremental Aggregate Commitments or a Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of Loan; provided that (i) the aggregate amount of all such increases together with the principal amount of such Term Loans shall not exceed $50,000,000 plus 125,000,000, (ii) any such request for an unlimited amountincrease or a Term Loan shall be in a minimum amount of $25,000,000, so long as, (iii) the Borrower may make a maximum of five (5) such requests and (iv) in the case of this clause (ii)a Term Loan, after giving pro forma effect to the Borrowing of such Incremental Term Loan and (A) shall be pari passu with the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Committed Loans, and (B) shall mature on or after giving pro forma effect to any Permitted Acquisitionthe Maturity Date, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, (C) shall be subject to the approval of customary mandatory prepayment provisions and (D) shall otherwise be on terms and conditions satisfactory to the Administrative Agent (such consent, in its discretion (the event that such Term Loan is on then market terms, not to be unreasonably withheld, conditioned or delayed). Such notice In the event of a request of a Term Loan, the parties hereto acknowledge and agree that this Agreement shall set forth (i) be amended to incorporate the amount of the Incremental Term Loan Commitments being requested (which and related provisions and such amendment shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested subject to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans Agent and the Incremental Term Loan Assumption Agreement Required Lenders (such consent not to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations unreasonably withheld or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions delayed so long as such Other Term Loans remain outstanding and Loan satisfies the provisions of the preceding sentence). At the time of sending such additional covenantsnotice, events of default, representations and warranties, and other rights and provisions the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of less than ten Business Days from the date of delivery of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as notice to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties heretoLenders).
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
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Increase in Commitments. (a) The So long as (x) no Default exists or would exist after giving effect to the making of the Incremental Term Loans or Incremental Revolving Loans referred to below and the use of proceeds therefrom and (y) after giving effect to the making of the Incremental Term Loans or Incremental Revolving Loans referred to below, and the use of proceeds therefrom, Borrower maywould be in compliance with the Financial Covenant on a pro forma basis on such date and for the most recent fiscal quarter for which financial statements have been delivered in accordance with Section 5.01 after giving effect on a pro forma basis to any related adjustment events, by including any acquisitions or dispositions after the beginning of the relevant calculation period but prior to or simultaneous with the borrowing of such Incremental Term Loans or Incremental Revolving Loans, then upon written notice to the Administrative Agent at any Agent, Borrower may from time after to time request (i) additional Term Loans (the Closing Date “Incremental Term Loans” and the related commitments, the “Incremental Term Loan Commitments”) and/or (ii) additional revolving loans or, prior to the Term Loan Revolving Credit Maturity Date, request on one or more occasionsan increase to the existing Revolving Loans (the “Incremental Revolving Loans” (together with the Incremental Term Loans, up to three in the aggregate“Incremental Loans”) and, together with the related commitments, the “Incremental Revolving Loan Commitments” and, together with the Incremental Term Loan Commitments from one or more Commitments, the “Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled Commitments”) up to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount (other than Replacement Term Loans) not to exceed the sum of (iA) $50,000,000 plus 800,000,000 and (iiB) an unlimited amount, so long as, in the case of this clause (ii)amount such that, after giving pro forma effect to the Borrowing of such Incremental Term Loans (and, with respect to any Incremental Revolving Loan and Commitments, the application full utilization of proceeds therefrom (assuming all such Incremental Term Revolving Loan Commitments were fully drawn Commitment), Borrower’s Secured Leverage Ratio would not exceed 3.50:1.00 less (C) the aggregate principal amount of Incremental Substitute Indebtedness incurred by Borrower and without “netting” the cash proceeds of its Subsidiaries; provided that (i) any Incremental Term Loans, Loans shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and after giving pro forma effect to (ii) any Permitted Acquisition, Investment Incremental Revolving Loan Commitments shall be in an aggregate amount of $10,000,000 or other transaction consummated any whole multiple of $1,000,000 in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00excess thereof; provided, further, that each Incremental Term Lender, if not already any existing Lender approached to provide all or a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms portion of the Incremental Term Loans and related commitments or Incremental Revolving Loans and related commitments may elect or decline, in its sole discretion, to be made thereunder; provided, that, without the prior written consent provide such loans and commitments. The Incremental Term Loans (A) shall rank pari passu in right of payment and right of security in respect of the Required LendersCollateral with the Term Loans and (B) other than amortization, pricing and maturity date, shall have the same terms as such Term Loans existing immediately prior to the effectiveness of the amendment creating such Incremental Term Loans; provided that (ix) the Incremental Term Loans shall not have a final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and the Incremental Term Loans established pursuant to an Extension Amendment shall not have a final maturity date earlier than the Term Loan Maturity Date applicable to such Class of Term Loans, (iiy) the weighted average life to maturity of any Other Incremental Term Loans shall be no not have a Weighted Average Life to Maturity that is shorter than the then-remaining weighted average life Weighted Average Life to maturity Maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loans established pursuant to an Extension Amendment shall not have a Weighted Life to Maturity that is shorter than the then-remaining Weighted Average Life to Maturity Applicable to such Class of Term Loans and (z) amortization of Incremental Term Loans shall not be greater than pro rata across the life of the Incremental Term Loans. Any Term Lender or additional bank or financial institution electing to make available an Incremental Term Loan Assumption Commitment (an “Incremental Term Lender”) shall become a Lender or make its Incremental Term Loan Commitment available, as the case may be, under this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement giving effect to the extent not consistent with modifications permitted by this Section 2.21 and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Incremental Term Lender and the Administrative Agent, and to any other documentation, in each case on terms applicable to the Term Loans hereunder shall otherwise be reasonably and documentation satisfactory to the Administrative AgentAgent and the Lead Arrangers. The Incremental Revolving Loans (A) shall rank pari passu in right of payment and right of security in respect of the Collateral with the applicable Revolving Loans and (B) other than, in the case of additional revolving loans, pricing and maturity date, shall have the same terms as Revolving Loans; andprovided that the Incremental Revolving Loans shall not have a final maturity date earlier than the Revolving Credit Maturity Date and the Incremental Revolving Loans established pursuant to an Extension Amendment shall not have a final maturity date earlier than the Revolving Credit Maturity Date of the applicable Class of Revolving Loans. Any Revolving Lender or additional bank or financial institution electing to make available an Incremental Revolving Commitment (an “Incremental Revolving Lender”) shall become a Lender or make its Incremental Revolving Commitment available, to as the extent that such Incremental Term Loan Assumption Agreement contains any covenantscase may be, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into under this Agreement, mutatis mutandispursuant to an Incremental Facility Amendment to this Agreement giving effect to the modifications permitted by this Section 2.21 and, as if fully set forth hereinappropriate, without the other Loan Documents, executed by the Loan Parties, each Incremental Revolving Lender and the Administrative Agent, and to any further action required other documentation, in each case on terms and documentation satisfactory to the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to and the effectiveness of each Lead Arrangers. An Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees thatFacility Amendment may, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the any other Lenders hereto Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effectuate effect the provisions of this Section 2.152.▇▇.▇▇ addition, andunless otherwise specifically provided herein, for all references in the avoidance Loan Documents to Term Loans, Revolving Loans, or such other Class of doubtTerm Loans or Revolving Loans created pursuant to an Extension Amendment or Incremental Facility Amendment shall be deemed, unless the context otherwise requires, to include references to Term Loans, Revolving Loans or such other Class of Term Loans or Revolving Loans established pursuant to an Extension Amendment or Incremental Facility Amendment, respectively, made pursuant to Incremental Term Loan Commitments and Incremental Revolving Loan Commitments, made pursuant to this Agreement.
(b) If any Incremental Term Loan Commitments or Incremental Revolving Loan Commitments are made in accordance with this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by 2.21, the Administrative Agent with and Borrower shall determine the Borrower’s consent effective date (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All each, an “Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waivedFacility Effective Date”) and the final allocation of such increase. The Administrative Agent shall have received promptly notify Borrower and the Lenders of the final allocation of such increase and the Incremental Facility Effective Date. As a condition precedent to such increase, Borrower shall deliver to the Administrative Agent a certificate to that effect of Borrower dated such date and executed as of the Incremental Facility Effective Date signed by a Financial Officer of Borrower (i) certifying and attaching (A) the Borrower, resolutions adopted by Borrower approving or consenting to such increase and (B) a certificate demonstrating pro forma compliance with the Financial Covenant as set forth in Section 2.21(a) and (ii) the Administrative Agent shall have received legal opinionscertifying that, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromsuch increase, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein set forth in Article III and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date the Incremental Facility Effective Date (unless expressly stated to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided ), and (B) no Default shall have occurred and be continuing.
(c) To the extent the Incremental Commitments being increased on the relevant Incremental Facility Effective Date are increases to existing Revolving Credit Commitments, then each Revolving Lender that is acquiring an Incremental Revolving Commitment on the Incremental Facility Effective Date shall make Revolving Loans, the proceeds of which will be used to prepay the Revolving Loans of the other Revolving Lenders immediately prior to such Incremental Facility Effective Date, so that, notwithstanding anything after giving effect thereto, the Revolving Loans outstanding are held by the Revolving Lenders pro rata based on their Revolving Credit Commitments after giving effect to such Incremental Revolving Commitments. If there is a new borrowing of Revolving Loans on such Incremental Facility Effective Date, the contrary Revolving Lenders after giving effect to such Incremental Revolving Commitments shall make such Revolving Loans in this accordance with Section 2.15 or in any other provision of any Loan Document, if 2.02.
(d) Borrower shall use the proceeds of any Incremental Term Loan are being used Loans and Incremental Revolving Loans for general corporate purposes (including to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of LoanPermitted Acquisitions).
(fe) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take This Section 2.21 shall supersede any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included provisions in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, 9.08 to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanscontrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, by written notice From time to the Administrative Agent at any time on and after the Closing Date and prior to the Term Loan Maturity Tranche 1 Termination Date, the Borrowers may, upon at least 30 days notice to the Administrative Agent (which shall promptly provide a copy of such notice to the Tranche 1 Lenders), propose to increase the aggregate amount of the Tranche 1 Commitments by an amount which (i) is not less than $25,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof, with respect to any such request nor (ii) when aggregated with all prior and concurrent increases in the Tranche 1 Commitments and Tranche 2 Commitments pursuant to this Section 2.20, is not in excess of $100,000,000. The Borrowers may increase the aggregate amount of the Tranche 1 Commitments by (x) having another lender or lenders (each, an “Additional Tranche 1 Lender”) become party to this Agreement, (y) agreeing with any Tranche 1 Lender (with the consent of such Lender in its sole discretion) to increase its Tranche 1 Commitment hereunder or (z) a combination of the procedures described in clauses (x) and (y) of this sentence.
(b) From time to time on and after the Closing Date and prior to the Tranche 2 Termination Date, the Borrowers may, upon at least 30 days notice to the Administrative Agent (which shall promptly provide a copy of such notice to the Tranche 2 Lenders), propose to increase the aggregate amount of the Tranche 2 Commitments by an amount which (i) is not less than $25,000,000 with respect to any such request nor (ii) when aggregated with all prior and concurrent increases in the Tranche 1 Commitments and Tranche 2 Commitments pursuant to this Section 2.20, is not in excess of $100,000,000. The Borrowers may increase the aggregate amount of the Tranche 2 Commitments by (x) having one or more occasionsEligible Assignees (each, up to three in an “Additional Tranche 2 Lender” and collectively with the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Additional Tranche 1 Lenders, the “Additional Lenders”) become party to this Agreement, (which may or may not include y) agreeing with any existing Tranche 2 Lender (each with the consent of which may be entitled to agree or decline to participate such Lender in its sole discretion if so offered discretion) to increase its Tranche 2 Commitment hereunder or (z) a combination of the opportunity procedures described in clauses (x) and (y) of this sentence.
(c) Upon any increase in the amount of the Tranche 1 Commitments or Tranche 2 Commitments, as the case may be, pursuant to do so)) in this Section 2.20 (each, an aggregate principal amount not to exceed the sum of “Additional Commitment”):
(i) $50,000,000 plus Each Additional Lender or existing Lender agreeing to increase its Commitments pursuant to this Section 2.20 (iieach, an “Increasing Lender”) shall enter into a Joinder Agreement pursuant to which such Additional Lender and/or Increasing Lender shall, as of the effective date, undertake an unlimited amount, so long asAdditional Commitment (or, in the case of this clause an Increasing Lender, pursuant to which such Increasing Lender’s Commitment shall be increased in the agreed amount on such date) and such Additional Lender shall thereupon become (or, if an Increasing Lender, continue to be) a “Lender” for all purposes hereof.
(ii)) The Borrowers shall in the event of an increase in the Tranche 1 Commitments, in coordination with the Administrative Agent, repay all outstanding Loans and incur additional Loans from other Tranche 1 Lenders in each case so that the Tranche 1 Lenders participate in each Borrowing pro rata on the basis of their respective Tranche 1 Commitments (after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisitionincrease in the Tranche 1 Commitments pursuant to this Section 2.20) and amounts payable under Section 2.18 as a result of the actions required to be taken under this Section 2.20, Investment or other transaction consummated shall be paid in connection therewith), full by the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Borrowers;
(iii) If any such Additional Lender is a Foreign Lender, if not already a such Additional Lender hereunder, shall deliver the forms required by Section 2.17(d); and
(iv) Any Additional Commitment shall be subject to the prior written approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”)Issuing Lender.
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Increase in Commitments. (a) The On or prior to 18the date that is 12 months after the ClosingFirst Amendment Effective Date, the Borrower may, by not less than 3 Business Days’ prior written notice to the Administrative NAI-15121569431515895953v1213 -51- Agent at any time after (who shall promptly notify the Closing Date and prior to the Term Loan Maturity DateLenders), request on one or more occasions, up to three increases in the aggregateCommitments denominated in U.S. Dollars (each such increase, an “Incremental Term Loan Commitments from one Commitment”) by a minimum amount of $50,000,000 and (1) an aggregate amount of $100,000,000, or more (2) such higher aggregate amount as mutually agreed between the Borrower and the LendersLender in their sole discretion.
(b) An Incremental Term Lenders, (which Commitment may or may not include be provided by any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do sosuch Lender, an “Incremental Lender”)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, provided that each Incremental Term Lender, if Lender that is not already a the Initial Lender hereunder, shall be subject to the approval consent (in each case, not to be unreasonably withheld, delayed or conditioned) of the Administrative Agent and the Initial Lender, which consent by the Initial Lender may be withheld in its the sole discretion (of the Initial Lender, but which consent by the Administrative Agent may not to be unreasonably withheld, conditioned or delayed). Such notice Notwithstanding anything herein to the contrary, no Lender shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which have any obligation to agree to increase its Commitment pursuant to this Section 2.15 and any election to do so shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date sole discretion of such notice, unless otherwise agreed Lender; provided that with respect to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 clause (a)(1), each Lender shall be satisfied (or waived) and the Administrative Agent shall have received a certificate obligated to that effect dated increase its Commitment by such date and executed by a Financial Officer Lender’s then-existingthen‐existing Pro Rata Share of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.such
Appears in 1 contract
Increase in Commitments. (a) The Borrower mayParent shall have the right, at any time and from time to time after the Effective Date by written notice to and in consultation with the Administrative Agent, to request an increase in the aggregate Commitments (each such requested increase, a “Commitment Increase”), by having one or more existing Banks increase their respective Commitments then in effect (each, an “Increasing Bank”), by adding as a Bank with a new Commitment hereunder one or more Persons that are not already Banks (each, an “Additional Bank”), or a combination thereof; provided that (i) any such request for a Commitment Increase shall be in a minimum amount of $25,000,000 or, unless the Administrative Agent at otherwise consents, a higher integral 48 multiple of $5,000,000, (ii) immediately after giving effect to any time Commitment Increase, the aggregate of all Commitment Increases effected after the Closing Effective Date shall not exceed $500,000,000, and prior (iii) no existing Bank shall be obligated to increase its Commitment as a result of any request for a Commitment Increase by the Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate Parent unless it agrees in its sole discretion if so offered the opportunity to do so).
(b) in Each Additional Bank must qualify as an aggregate principal amount not to exceed the sum of Eligible Assignee (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of which by the Administrative Agent in its discretion (Agent, each Fronting Bank that has Issued an outstanding Letter of Credit and the Swingline Bank shall not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower Parent and each Incremental Term Lender Additional Bank shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and a joinder agreement together with all such other documentation as the Administrative Agent shall may reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; providedrequire, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date all in form and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be substance reasonably satisfactory to the Administrative Agent; and, to evidence the extent that Commitment of such Incremental Term Loan Assumption Agreement contains any covenantsAdditional Bank and its status as a Bank hereunder.
(c) If the aggregate Commitments are increased in accordance with this Section, events (i) the Parent shall determine the final amount and allocation of default, representations or warranties or other rights or provisions that place greater restrictions on such increase and (ii) the Borrower or any of their respective Subsidiaries that are more favorable Administrative Agent and the Parent shall determine the effective date (the “Commitment Increase Date,” which shall be a Business Day not less than 30 days prior to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit Maturity Date) of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreementincrease. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each Parent and the Banks of the parties hereto final amount and allocation of such increase and the Commitment Increase Date. The Administrative Agent is hereby agrees thatauthorized, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms on behalf of the Incremental Term Loan Commitment and Banks, to enter into any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, shall reasonably deem appropriate to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any effect such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary GuarantorsCommitment Increase.
(d) Notwithstanding anything set forth in this Section 2.19 to the foregoingcontrary, no Incremental Term Loan Commitment shall become effective under increase in the aggregate Commitments pursuant to this Section 2.15 unless 2.19 shall be effective unless:
(i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the The Administrative Agent shall have received the following, each dated the Commitment Increase Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) as to each Increasing Bank, evidence of its agreement to provide a certificate to that effect dated such date and executed by a Financial Officer portion of the BorrowerCommitment Increase, (ii) and as to each Additional Bank, a duly executed joinder agreement together with all other documentation required by the Administrative Agent shall have received legal opinionspursuant to Section 2.19(b);
(B) an instrument, duly executed by each Borrower, acknowledging and reaffirming its obligations under this Agreement and the other Loan Documents;
(C) unless covered by resolutions previously delivered hereunder, a certificate of the secretary or an assistant secretary or other appropriate officer of each Borrower, certifying to and attaching the resolutions adopted by the board resolutions and other closing certificates and documentation substantially consistent with those delivered on of directors (or similar governing body) of such Borrower approving or consenting to such Commitment Increase;
(D) a certificate of a Responsible Officer, certifying that (y) as of the Closing Commitment Increase Date, all representations and (iii) warranties of the Credit Parties Borrowers contained in this Agreement and their Subsidiaries would be the other Loan Documents qualified as to materiality are true and correct and those not so qualified are true and correct in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loansmaterial respects, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both both immediately before and immediately after giving effect to the Commitment Increase (except to the extent any Incremental Term Loan Commitmentsuch representation or warranty is expressly stated to have been made as of a specific date, the borrowings thereunder in which case such representation or warranty is true and the application of proceeds therefrom, correct (Aif qualified as to materiality) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”if not so qualified), which shall be true and correct in all respects) on and each case as of such date date), and (z) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Commitment Increase; and
(ii) If there is a non-ratable increase in the same extent as though made on and as aggregate Commitments, each outstanding Syndicated Letter of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties Credit shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything amended giving effect to the contrary in this Section 2.15 reallocation of the Commitments or, if required, returned by each respective beneficiary to the Administrative Agent and cancelled and/or exchanged for a new or in any other provision amended Syndicated Letter of Credit giving effect to the reallocated Commitments; and
(iii) In the case of any Loan DocumentCredit Extension in connection with such Commitment Increase, if the proceeds conditions precedent set forth in Section 4.02 shall have been satisfied. To the extent necessary to keep the outstanding Loans ratable in the event of any Incremental Term Loan are being used to finance a Limited Condition Acquisition non-ratable increase in the aggregate Commitments, on the Commitment Increase Date, (i) no Event of Default under Section 8.01(aall then outstanding LIBOR Loans (the “Initial Loans”) or (i) exists or would result from the incurrence of such Incremental Term shall automatically be converted into Base Rate Loans, and (ii) immediately after the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness effectiveness of the Borrower Commitment Increase, the applicable Borrowers shall, if they so request, convert such Base Rate Loans into LIBOR Loans (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Conversion/Continuation delivered to the Administrative Agent in accordance with Section 2.10, (iii) each Bank shall pay to the Administrative Agent in immediately available funds an amount equal to the difference, if positive, between (y) such Bank’s Pro Rata Share (calculated after giving effect to the Specified Representations, which shall be true and correct both at the time of signing Commitment Increase) of the relevant acquisition or similar agreement Subsequent Borrowings and at (z) such Bank’s Pro Rata Share (calculated without giving effect to the time Commitment Increase) of the incurrence such Incremental Term Initial Loans. If applicable, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall have received a Notice pay to each Bank the portion of Borrowing such funds equal to the difference, if positive, between (y) such Bank’s Pro Rata Share (calculated without giving effect to the Commitment Increase) of the Initial Loans and (z) such Bank’s Pro Rata Share (calculated after giving effect to the Commitment Increase) of the amount of the Subsequent Borrowings, (v) the Banks shall be deemed to hold the Subsequent Borrowings ratably in respect accordance with their respective Commitment (calculated after giving effect to the Commitment Increase), (vi) each applicable Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Banks entitled thereto, and (vii) Schedule I shall automatically be amended to reflect the Commitments of any Incremental Term all Banks after giving effect to the Commitment Increase. The conversion of the Initial Loans pursuant to clause (i) above shall be subject to indemnification by the date and time required hereunder with respect applicable Borrowers pursuant to the applicable Type provisions of Loan.
(f) Each Section 2.17 if the Commitment Increase Date occurs other than on the last day of the parties hereto hereby agrees that Interest Period relating thereto. Notwithstanding the foregoing, the Parent and the Administrative Agent may, may agree upon other methods of implementing a Commitment Increase (including a phase-in of a Commitment Increase with certain Banks having temporary risk participations in outstanding Revolving Loans pending the Borrower’s prior written consent, take any and all action end of Interest Periods for LIBOR Loans) so long as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply applicable method is not materially disadvantageous to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term LoansBank.
Appears in 1 contract
Sources: Credit Agreement (ACE LTD)
Increase in Commitments. (ai) The Borrower Company may, no more than once a year, by written notice to the Administrative Agent at substantially in the form of Exhibit G-1, request the Lenders to increase the Aggregate Commitments, which notice shall be accompanied by the resolutions of the board of directors of the Company approving such increase certified by the Secretary or an Assistant Secretary of the Company; provided that in no event shall the Aggregate Commitments be increased by more than US$300,000,000 in the aggregate (for all increases pursuant to this Section 2.17) without the written consent of all Lenders.
(ii) Any optional increase shall be permitted only if (i) no Default or Event of Default has occurred and is continuing and (ii) the Aggregate Commitments following such increase is a multiple of US$5,000,000.
(iii) The Administrative Agent shall transmit any time after the Closing Date and prior increase request to the Term Loan Maturity DateArrangers within one Business Day after its receipt thereof, who shall relay such increase request on to each Lender within one Business Day after their receipt thereof. Each Lender will have the option, in its sole discretion, to subscribe for its Pro Rata Share of such requested increase. The Lenders shall respond in writing to the Company’s request through the Arrangers within 15 Business Days by submitting a letter in the form of Attachment I to Exhibit G-1. Any Lender not responding within 15 Business Days shall be deemed to have declined to participate in the increase request. At the option of the Company, any part of the increase not so subscribed may be assumed, within 20 Business Days of the Lenders’ response, by one or more occasionsexisting Lenders or assumed by other financial institutions designated by the Company and acceptable to each Lender, up to three the Issuing Bank and the Administrative Agent, which consents shall not be unreasonably withheld, upon submission of a letter in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each form of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long asExhibit G-2, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term an existing Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriateExhibit G-3, in the reasonable opinion case of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant new party to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of LoanAgreement.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (Pentair Inc)
Increase in Commitments. (a) The Borrower may, may by written notice to the Administrative Agent at elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments of the Class of Revolving Credit Commitments with the Latest Maturity Date and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any time after the Closing Date and prior existing Class of Term Loans or to the Term Loan Maturity Date, request on establish one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each new Classes of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth provided that:
(i) the aggregate amount of the Incremental Term Loan all Additional Commitments being requested shall not exceed $500,000,000;
(which ii) any such increase or any new Class shall be in minimum increments of $1,000,000 and a minimum an aggregate amount of $5,000,000), (ii) the date on which 10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such Incremental Term Loan Commitments are requested to become effective (which shall not amount may be less than 15 days nor more than 60 days after $10,000,000 if such amount represents all remaining availability under the date of such notice, unless otherwise agreed to by limit set forth in the Administrative Agent) and preceding clause (i);
(iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Additional Term Loans shall be no earlier than the Term Loan Latest Maturity Date and Date;
(iiiv) the weighted average life Additional Term Loans shall have a Weighted Average Life to maturity Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(v) the Applicable Rate with respect to any Other Additional Term Loans shall be no shorter determined by the Borrower and the lenders of the Additional Term Loans; provided that in the event that the Applicable Rate for any Additional Non-Institutional Term Loans is greater than the remaining weighted average life Applicable Rate for the Tranche A Term Loans by more than 50 basis points, then the Applicable Rate for the Tranche A Term Loans shall be increased to maturity of the Closing Date extent necessary so that the Applicable Rate for the Additional Non-Institutional Term Loans is not more than 50 basis points higher than the Applicable Rate for the Tranche A Term Loans, and ; provided, further, that, if in determining the Initial Yield on such Other Applicable Rate with respect to Additional Term Loans exceeds by more than 0.50% or the sum applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) the margin then in effect for Term Loans that are Eurodollar Loans plus original issue discount (B“OID”) one-quarter of the amount of such or upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans or similar fees (which shall be increased deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included, (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (C) the amount by which any Eurodollar Rate “LIBOR floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to such Other Outstanding Term Loans on shall be equated to an increase in the date such Other Applicable Rate for the Additional Term Loans are made exceeds the Adjusted Eurodollar Ratefor purposes of this clause (v);
(vi) plus no existing Lender shall be required to provide any Additional Commitments;
(yvii) if the Lenders making such Other Term Loans receive an upfront fee subject to clause (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiariesiv), the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) except during the Collateral Suspension Period (unless the Borrower shall have elected to terminate the Collateral Suspension Period), the Additional Term Loans hereunder shall otherwise be rank pari passu with or junior in right of payment and/or of security with the existing Loans, and if junior in right of payment and/or security, on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent; and
(ix) the Additional Term Loans may have optional prepayment terms (including call protection and prepayment premiums) and mandatory prepayment terms as may be agreed between the Borrower and the lenders of the Additional Term Loans so long as such Additional Term Loans do not participate on a greater than pro rata basis in any such mandatory prepayments as compared to Tranche A Term Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof), (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such Incremental Term Loan Assumption Agreement contains any covenantsrepresentations and warranties specifically refer to an earlier date, events in which case they shall have been true and correct in all material respects as of defaultsuch earlier date, representations or warranties or other rights or provisions and except that place greater restrictions on the Borrower or any for purposes of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loansthis Section 2.14(b), the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, warranties contained in Section 5.05(a) and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions Section 5.05(b) shall be deemed automatically incorporated by reference into this Agreementto refer to the most recent financial statements furnished pursuant to subsections (a) and (b), mutatis mutandisrespectively, as if fully of Section 6.01, (ii) no Default or Event of Default exists and (iii) the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth hereinin Section 7.11. On each Additional Commitments Effective Date with respect to any Additional Term Commitment, without each Person with an Additional Term Commitment shall make an Additional Term Loan to the Borrower in a principal amount equal to such Person’s Additional Term Commitment. The Borrower shall prepay any further action required Revolving Credit Loans outstanding on the part of Additional Commitments Effective Date with respect to any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments. If there is a new Borrowing of Revolving Credit Commitments on such Additional Commitments Effective Date, the Revolving Credit Lenders after giving effect to such Additional Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(b).
(but only c) Any other terms of and documentation entered into in respect of any Additional Term Commitments shall be on terms and pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.14(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that to the extent) necessary to reflect the existence extent such other terms and terms documentation in respect of any Additional Non-Institutional Term Loans are not consistent with those of the Incremental Tranche A Term Loan Commitment Loans (except to the extent permitted by Section 2.14(a)(iii), (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory to the Administrative Agent.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate effect the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing2.14.
(e) Both immediately before and immediately after giving effect to This Section 2.14 shall supersede any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing provisions in Section 2.13 or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date Section 10.01 to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loancontrary.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (MSCI Inc.)
Increase in Commitments. (a) The Borrower maySEI may at any time and from time to time, by written notice delivery to the Administrative Agent at any time after of a written notice signed by a Responsible Officer of SEI (whereupon the Closing Date and prior Administrative Agent shall promptly deliver a copy to each of the Term Loan Maturity DateLenders), request on one the addition of a new tranche of term loans (an “Incremental Term Facility”) or more occasions, up to three an increase in the aggregateAggregate Commitments (an “Incremental Revolving Commitment”) or a combination thereof; provided that at the time of any such request and upon the effectiveness of the Incremental Facility Amendment referred to below, (i) no Default or Event of Default shall exist, and (ii) SEI shall be in pro forma compliance with the financial covenants set forth in Section 7.01 (as demonstrated in a Compliance Certificate executed by a Responsible Officer of SEI). Each Incremental Term Loan Commitments from one Facility or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may Revolving Commitment shall be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not less than $15,000,000 (or such lesser amount as may be acceptable to the Administrative Agent), and the aggregate principal amount of all such Incremental Term Facilities and Incremental Revolving Commitments shall not exceed $50,000,000. Each Incremental Term Facility (a) shall rank pari passu or junior in right of payment and of security with the sum Loans (and any such Incremental Term Facility which is junior in right of payment shall have customary second lien, subordination, standstill and other provisions reasonably acceptable to the Administrative Agent), (ib) $50,000,000 plus shall not mature earlier than the Maturity Date, (iic) an unlimited amountshall have a weighted average life and contain terms as to prepayments and amortization that are acceptable to the Administrative Agent, so long asand (d) shall not contain additional or different covenants or financial covenants which are more restrictive in any material respect than the covenants in the Loan Documents at the time of the incurrence of such Incremental Term Facility unless either such covenants benefit all of the Lenders or are otherwise consented to by the Administrative Agent. Any such notice shall set forth the amount and terms of the relevant Incremental Term Facility or Incremental Revolving Commitment requested by SEI and to be agreed by any Lenders or Additional Lenders (as herein defined) under such Incremental Term Facility or providing such Incremental Revolving Commitment. SEI may arrange for one or more banks or other financial institutions or, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such an Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term LoansFacility, and after giving pro forma effect to any Permitted Acquisitioninstitutional investors, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; Agent and, with respect only to Incremental Revolving Commitments, the extent that Swing Line Lender and the L/C Issuer (any such bank or other financial institution being called an “Additional Lender”), to extend commitments under the Incremental Term Facility or provide a portion of the Incremental Revolving Commitment, and each existing Lender shall be afforded an opportunity, but shall not be required, to provide a portion of any such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations Facility or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date provide a portion of such Incremental Term Loan Assumption AgreementRevolving Commitment. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness Commitments in respect of any Incremental Term Loan Assumption Agreement Facility or such other joinder agreement or amendmentany Incremental Revolving Commitment shall become Commitments under this Agreement, and each Additional Lender shall become a Lender under this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement shall be amended and, as appropriate, the other Loan Documents, executed by the Borrowers, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance Section. The effectiveness of doubt, this Section 2.15(b) any Incremental Facility Amendment shall supersede any provisions be subject to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) satisfaction on the date thereof of such effectiveness, each of the conditions set forth in Section 4.02 (it being understood that all references to “date of the applicable Credit Extension” in such Section 4.02 shall be satisfied (or waived) and deemed to refer to the Administrative Agent shall have received a certificate to that effect dated such effective date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash Facility Amendment). The proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition Facility or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan CommitmentRevolving Commitment will be used for working capital, the borrowings thereunder capital expenditures, acquisitions and the application other general corporate purposes not in contravention of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing any Law or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if . No Incremental Revolving Commitment shall increase the proceeds sublimit for Letters of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) Credit or (i) exists or would result from Swing Line Loans without the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness consent of the Borrower and (y) L/C Issuer or the Specified RepresentationsSwing Line Lender, which as applicable. This Section shall be true and correct both at the time of signing of the relevant acquisition supersede any provisions in Sections 2.13 or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect 10.01 to the applicable Type of Loancontrary.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Increase in Commitments. (a) The Borrower maymay at any time or from time to time after the Effective Date, by written notice to the Administrative Agent at any time after (whereupon the Closing Date and prior Administrative Agent shall promptly deliver a copy to each of the Term Loan Maturity DateLenders), request on (x) one or more occasionsnew commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any Term Loan Increase, up to three in the aggregate, “Incremental Term Loan Commitments from Loans”), or (y) one or more increases in the amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”, together with any Incremental Term LendersLoans, referred to herein as an “Incremental Facility”), provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility, (x) no Default or Event of Default has occurred and is continuing or would result therefrom (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, (A) no Event of Default shall be continuing at the time of execution of the applicable contract or agreement for such acquisition and (B) no Event of Default under Sections 7.01(a), (b), (h) or (i) shall be continuing at the time of making such acquisition)) and (y) the condition in Section 4.02(b) shall be satisfied (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, such representations shall be limited to the Specified Representations (as defined in the Existing Credit Agreement, which may or may not include shall be conformed as reasonably necessary for such acquisition to provide for certainty of funding in connection with such transaction)), (ii) no Lender shall be obligated to provide an Incremental Facility as a result of any existing such request by the Borrower, and until such time, if any, as such Lender (each of which may be entitled to agree or decline to participate has agreed in its sole discretion to provide an Incremental Facility and executed and delivered to the Administrative Agent and the Borrower an Incremental Facility Agreement as provided in clause (c) of this Section 2.23, such Lender shall not be obligated to fund any Incremental Facility, (iii) any Lender may so provide an Incremental Facility without the consent of any other Lender, (iv) Incremental Facilities shall be denominated in dollars, (v) the Incremental Loan Commitment Requirements shall have been satisfied, and (vi) the provision of Incremental Facilities pursuant to this Section 2.23 on a given date pursuant to a particular Incremental Facility Agreement shall be in a minimum aggregate amount of $5,000,000 (provided that such amount may be less than $5,000,000 if so offered such amount represents all remaining availability under the opportunity limit set forth in the next sentence). Notwithstanding anything to do so)) in an the contrary herein, the aggregate principal amount of the Incremental Facilities shall not to exceed the sum of (the “Incremental Cap”): (i) $50,000,000 75,000,000 plus (ii) an unlimited amount, amount so long as, in the case of this clause (ii), the First Lien Net Leverage Ratio would not exceed 4.25:1.00, calculated at the time of incurrence on a pro forma basis after giving pro forma effect to the Borrowing of such Incremental Term Loan thereto and the application of the proceeds therefrom thereof, and assuming any such Incremental Facility is secured on a first lien basis, whether or not so secured (and, in the case of any Revolving Commitment Increase, assuming all a full drawing of such Revolving Commitment Increase). The amount of such Incremental Facility together with any Incremental Equivalent Debt shall not exceed the Incremental Cap.
(b) The Incremental Term Loans (i) shall rank pari passu in right of payment and pari passu or junior (subject to an intercreditor agreement reasonably satisfactory in form and substance to the Administrative Agent) with respect to security with the existing Term Loans, shall not be guaranteed by any Person that has not guaranteed the existing Term Loans and shall not be secured by assets other than Collateral; (ii) shall mature on such date and amortize on such schedule as each may be agreed by the Borrower and the Lenders providing such Incremental Term Loan, provided that, as of the date of incurrence, no Incremental Term Loan Commitments were fully drawn shall mature earlier than the Term Maturity Date and, as of the date of incurrence, each Incremental Term Loan shall have a Weighted Average Life to Maturity that is no shorter than the then remaining Weighted Average Life to Maturity of the existing Term Loans; (iii) except with respect to the applicable interest rate (subject to clause (e) below) and without “netting” as set forth in this clause (b), shall be on terms and pursuant to documentation determined by the cash proceeds of any Borrower and the Additional Lenders providing the Incremental Term Loans, (iv) may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis (except in respect of any voluntary prepayments of any Class of Loans with an earlier maturity date than any other Class of Loans or in the case of any permitted refinancing thereof)) in any voluntary or mandatory prepayments of Loans hereunder; and after giving pro forma effect (v) may include any Previously Absent Financial Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Covenant for the benefit of each Class (provided, however, that if (x) the documentation governing any Permitted Acquisition, Investment or other transaction consummated Incremental Facility that includes a Previously Absent Financial Covenant in connection therewithrespect of and for the benefit of an Revolving Commitment Increase only and (y) such Previously Absent Financial Covenant is a financial maintenance covenant solely for the benefit of a Class of Revolving Loans (and not any Class of Term Loans), the Leverage Ratio Previously Absent Financial Covenant shall only be required to be included in this Agreement for the benefit of Revolving Loans); provided that (x) the terms and conditions applicable to the Incremental Term Loans may also include any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof so long as such additional covenants or other provisions are applicable only during periods after the latest Maturity Date for the Term Loans in effect on the date the Incremental Term Loans are issued, incurred or obtained or the date on which all non-refinanced Obligations are paid in full and (y) to the extent such terms and documentation are not exceed 2.50:1.00consistent with the existing Term Loans (except with respect to the applicable interest rate, upfront fees, original issue discount or similar fees and as otherwise set forth in this paragraph), such terms and documentation shall be reasonably satisfactory to the Administrative Agent; provided, further, that each (x) any Incremental Term LenderLoans that rank pari passu in right of security and are issued pursuant to an agreement other than this Agreement shall be in the form of notes and not loans and (y) to the extent such Incremental Term Loans rank junior with respect to security with the existing Term Loans, if not already a Lender hereunder, such Incremental Term Loans shall be subject to an intercreditor arrangement reasonably satisfactory to the approval Administrative Agent.
(c) Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Borrower and the Administrative Agent and, in its discretion the case of a Revolving Commitment Increase, the Issuing Bank and each Swingline Lender shall have consented (such consents not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, as applicable. Commitments in respect of Incremental Facilities shall become effective pursuant to an amendment (an “Incremental Facility Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Facilities, if any, each Additional Lender, if any, and the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the The Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000)Facility Agreement may, (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the any other Lenders hereto Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, Borrower to effectuate effect the provisions of this Section 2.15, and, for the avoidance 2.22. The effectiveness of doubt, this Section 2.15(b) any Incremental Facility Agreement shall supersede any provisions be subject to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of such effectiveness, each of the conditions set forth in Section 4.02 (other than as set forth in clause (a) of this Section 2.23) and such other conditions as the parties thereto shall agree.
(d) The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be satisfied (or waived) obligated to provide any Incremental Facility, unless it so agrees in writing. Upon each increase in the Revolving Commitments pursuant to this Section 2.23, each Revolving Lender immediately prior to such increase will automatically and the Administrative Agent shall without further act be deemed to have received assigned to each Lender providing a certificate to that effect dated such date and executed by a Financial Officer portion of the BorrowerRevolving Commitment Increase (each, a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Credit Commitment. In addition, (x) each of the Revolving Lenders immediately prior to such increase shall assign to each Revolving Commitment Increase Lender and each of the Revolving Commitment Increase Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the Revolving Loans outstanding on such Incremental Facility Agreement closing date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and Revolving Commitment Increase Lender ratably in accordance with their Revolving Commitments after giving effect to the addition of such Revolving Commitment Increases, (y) each Revolving Commitment Increase shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (z) each Revolving Commitment Increase Lender shall become a Lender with respect to the Revolving Commitment Increase and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall have received legal opinionsnot apply to the transactions effected pursuant to the immediately two preceding sentences so long as the Revolving Lenders and Term Lenders do not receive less than pro rata treatment.
(e) The All-In Yield applicable to the Incremental Facility, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance that is secured on a pro forma pari passu basis with the Obligations, shall be determined by the Borrower and the applicable lenders and shall be set forth in each applicable Incremental Facility Agreement; provided, however, that (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of A) with respect to any Incremental Term Loans, and giving pro forma effect the All-In Yield applicable to such Incremental Term Loans shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Term Loans existing at such time plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the Adjusted LIBO Rate floor or Alternate Base Rate floor) with respect to such Term Loans is increased so as to cause the then applicable All-In Yield under this Agreement on such Term Loans to equal the All-In Yield then applicable to the Incremental Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Permitted Acquisition Loan due to the application or other transaction consummated imposition of a Adjusted LIBO Rate floor or Alternate Base Rate floor on any Incremental Facility shall be effected solely through an increase in connection therewith(or implementation of, as applicable) with of a Leverage Ratio that does not exceed 0.25 to 1.00 less than Adjusted LIBO Rate floor or Alternate Base Rate floor for such Loan. For the Leverage Ratio that is actually provided for in Section 7.07(a) at the time avoidance of such Borrowing.
doubt this clause (e) Both immediately before and immediately after giving effect shall not apply to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, Equivalent Debt incurred in compliance with clause (Af) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loanbelow.
(f) Each The Borrower may, upon notice to the Administrative Agent, at any time or from time to time after the Effective Date, issue, incur or otherwise obtain Indebtedness of the parties hereto hereby agrees Borrower (and any refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or secured on a pari passu or junior lien basis with the Obligations under the initial Loans), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Facility (the “Incremental Equivalent Debt”); provided that (i) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of any Loan Party or any Restricted Subsidiary other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any guarantee by any Person other than the Loan Guarantors, (ii) if such Incremental Equivalent Debt is (x) secured on a pari passu or junior basis with the Obligations under the initial Loans, then such Incremental Equivalent Debt shall be subject to an intercreditor agreement that is reasonably satisfactory, in form and substance, to the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 or (y) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall apply be subject to any conversion of Eurodollar Loans which are Term Loans a lien subordination and intercreditor arrangement reasonably satisfactory, in form and substance, to Base Rate Loans reasonably required by the Administrative Agent and the Borrower, (iii) such Incremental Equivalent Debt (A) shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing and (B) shall not have a Weighted Average Life to effect Maturity which is shorter than the foregoing. In additionWeighted Average Life to Maturity of the then existing Term Loans, (iv) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any Incremental Term such mandatory redemption or prepayment is required to be applied first or pro rata to the Loans are not Other Term Loansand any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, the scheduled amortization payments customary offers to repurchase and prepayment events upon a change of control and a customary acceleration right after an event of default), (v) except as otherwise set forth in Section 2.12(b) required this clause (f), such Incremental Equivalent Debt shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect to be made the initial Loans (except for covenants or other provisions applicable only to periods after the making Latest Maturity Date of the Loan) and such Incremental Term Loans terms and conditions shall be ratably increased by the aggregate principal amount current market terms for such type of such Incremental Term Loans.Equivalent Debt (as reasonably determined in good faith b
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Increase in Commitments. (a) The Borrower Borrowers may, by written notice to the Administrative Agent at any time after the Closing Date and Agent, elect to request (x) prior to the Term Loan Maturity DateDate for the Revolving Facility, request on an increase to the existing Revolving Commitments (each, an “Incremental Revolving Commitment”) and/or (y) the establishment of one or more occasionsnew term loan commitments (each, up an “Incremental Term Commitment” and the Loans thereunder “Incremental Term Loans”); Incremental Revolving Commitments and Incremental Term Commitments are referred in this Section 2.18, as “Incremental Commitments”)), by an aggregate amount (after giving effect to three all increases under clauses (x) and (y)) not exceeding, in the aggregateaggregate (for all such requests), Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 the Fixed Amount (less any use under this Section 2.18 or Section 7.02(p) plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of Ratio Amount. Each such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth specify (i) the amount of date (each, an “Increase Effective Date”) on which the Borrowers propose that the Incremental Term Loan Commitments being requested (shall be effective, which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), date not less than five (ii5) Business Days after the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver notice is delivered to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life identity of each Eligible Assignee to maturity whom the Borrowers propose any portion of such Incremental Commitments be allocated and the amounts of such allocations; provided that any Other Term Loans existing Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitment. Each Incremental Commitment shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the an aggregate amount of $25,000,000 or any whole multiple of $5,000,000 in excess thereof (provided that such upfront fee paid on amount may be less than $25,000,000 if such amount represents all remaining availability under the Closing Date aggregate limit in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions Commitments set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowingabove).
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
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Increase in Commitments. (a) The Borrower may, by written notice to the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity DateAgent, request on to effect one or more occasions, up to three increases in the aggregate, aggregate amount of the Commitments (the “Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)Commitments”) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 an amount such that the Senior Secured Leverage Ratio, as of the date of the effectiveness of any such Incremental Commitments, would be equal to or less than 3.50:1.00, calculated on a Pro Forma Basis (treating any such proposed Incremental Commitments as fully drawn and the Loans thereunder outstanding) (provided that any proceeds of such Incremental Commitments and any proceeds of any substantially simultaneous incurrence of Indebtedness shall not be netted from Consolidated Senior Secured Indebtedness for purposes of calculating the Senior Secured Leverage Ratio) plus (ii) $100,000,000 (less the aggregate principal amount of all loans incurred after the Second Amendment and Restatement Date pursuant to Section 2.18 of the Term Loan Facility (or other “incremental” provisions of the Term Loan Facility). For the avoidance of doubt, the Borrower may establish Incremental Commitments under this Section 2.20 in reliance on Section 2.20(a)(i) to the extent permitted prior to using Section 2.20(a)(ii). Notwithstanding the foregoing, if the Borrower has not included in such notice to the Administrative Agent for any Incremental Commitments an unlimited amountexplicit election to establish such Incremental Commitments pursuant to Section 2.20(a)(i) or Section 2.20(a)(ii), so long asthen the Borrower shall be deemed to have elected to establish such Incremental Commitments under Section 2.20(a)(i) to the extent such Incremental Commitments are permitted to be incurred under such clause. Upon the receipt of such request by the Agent, the Agent shall deliver a copy thereof to each Lender. Such notice shall set forth the amount of the requested Incremental Commitments (which shall be (i) in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or (ii) equal to the remaining amount available for Incremental Commitments) and the date on which such increase is requested to become effective. The Incremental Commitments may be made by any existing Lender (and each existing Lender shall have the right, but not an obligation, in the case of this clause (ii)its sole discretion, after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds make available a portion of any Incremental Term Loans, Commitment on terms permitted in this Section 2.20 and after giving pro forma effect otherwise on terms reasonably acceptable to the Agent and any Lender that fails to respond to any Permitted Acquisition, Investment request to make available a portion of any Incremental Commitment shall be deemed to have declined such request) or by any other bank or other transaction consummated in connection therewithfinancial institution (any such other bank or other financial institution, an “Additional Lender”), the Leverage Ratio shall not exceed 2.50:1.00; provided, provided that each Incremental Term Additional Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion Agent, the Swingline Lender and the Issuing Lender (which approvals shall not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Additional Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and all such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan its Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, and/or its status as a Lender hereunder.
(ib) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon that the effectiveness of Agent may take any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents all actions as may be reasonably necessary or appropriateto ensure that, after giving effect to any Incremental Commitments, the outstanding Revolving Loans (if any) are held by the Lenders in accordance with their new Applicable Percentages. This may be accomplished at the reasonable opinion discretion of the Administrative Agent and Agent, following consultation with the Borrower, (i) by requiring the outstanding Revolving Loans to effectuate be prepaid with the provisions proceeds of a new Borrowing, (ii) by causing existing Lenders to assign portions of their outstanding Revolving Loans to Lenders providing the Incremental Commitments and the Additional Lenders, or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties heretobut otherwise without premium or penalty.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment Commitments or addition of a new Lender shall become effective under this Section 2.15 unless 2.20 unless, (i) no Default shall have occurred or be continuing or would exist after giving effect to such increase, (ii) on the date of such effectivenessincrease, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (iiiii) upon reasonable request by the Administrative Agent, the Agent shall have received legal opinions, opinions and board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, Date under Sections 4.01(g) and 4.01(k)(i) and (iiiiv) on a Pro Forma Basis, after giving effect to such Incremental Commitments and any Acquisition to be consummated simultaneously with such increase, the Credit Parties and their Subsidiaries would Borrower shall be in compliance on a pro forma basis with Section 6.01 (assuming all it being understood that for purposes of determining compliance with this clause (iv), the Commitments shall be deemed to be fully drawn).
(d) Any Incremental Commitments established hereunder shall have terms identical to the Commitments existing immediately prior to the establishment of such Incremental Term Loan Commitments were fully drawn Commitments; provided that any commitment, arrangement, upfront or similar fees may be agreed among the Borrower, the Lenders and without “netting” the cash proceeds of any Additional Lenders providing such Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such BorrowingCommitments.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default Commitments shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate become Commitments under this Agreement pursuant to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects amendment (except for those representations and warranties that are conditioned by an “materiality” or “material adverse effectIncremental Amendment”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of and, as appropriate, the Borrower and (y) other Facility Documents, executed by the Specified RepresentationsBorrower, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence each Lender agreeing to provide such Incremental Term LoansCommitment, each Additional Lender and the Agent. If applicableThe Incremental Amendment may, without the consent of any other Agents or Lenders, effect such amendments to this Agreement and the other Facility Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent shall have received a Notice and the Borrower to effect the provisions of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loanthis Section 2.20.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take This Section 2.20 shall supersede any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included provisions in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, 2.17 or 10.02 to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanscontrary.
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Increase in Commitments. (a) The Borrower may, may by written notice to the Administrative Agent at elect to seek commitments (“Additional Commitments”) to increase the aggregate principal amount of any time after the Closing Date and prior existing Class of Loans or to the Term Loan Maturity Date, request on establish one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, new Classes of Loans (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Additional Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith”), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth provided that: (i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Term Loan Commitments being requested Cap; (which ii) any such increase or any new Class shall be in minimum increments an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 and a minimum in excess thereof; provided that such amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not may be less than 15 days nor more than 60 days after $10,000,000 if such amount represents all remaining availability under the date of such notice, unless otherwise agreed to by limit set forth in the Administrative Agent) and preceding clause (i); (iii) whether such Incremental Term Loan Commitments are no existing Lender shall be required to provide any Additional Commitments; (iv) each of the following conditions required to be set forth in the applicable Additional Credit Extension Amendment shall have been satisfied; (v) other than with respect to Customary Term Commitments A Loans, any bridge or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree similar loan or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banksfacility or revolving credit facilities, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Additional Term Loans shall be no earlier than the Term Loan Maturity Date of the Term B-78 Loans; (vi) other than with respect to Customary Term A Loans, any bridge or similar loan or facility or revolving credit facilities, the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of the Term B-78 Loans; (vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Lenders of such Additional Term Loans; provided that in the event that the Weighted Average Yield for any floating rate, Dollar-denominated syndicated Additional Term Loans (other than with respect to Customary Term A Loans or revolving credit facilities) incurred within twenty-four (24) months after the Amendment No. 8 Effective Date (other than (x) any Additional Term Loans established for the primary purposes of financing a Permitted Acquisition or other Investment and (y) Additional Term Loans in an aggregate amount not to exceed the -72- greater of (i) $725.0 million and (ii) an amount equal to 100% of Consolidated Cash Flow Available for Fixed Charges for the weighted average life to maturity of any Other Term Loans shall be no shorter Four Quarter Period) is greater than the remaining weighted average life to maturity of Weighted Average Yield for the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term B-78 Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”)50 basis points, then the Applicable Loan Margin then in effect Rate for each such affected Type of the Term B-78 Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by to the amount any “LIBOR floor” applicable to extent necessary so that the Weighted Average Yield for such Other Additional Term Loans on is not more than 50 basis points higher than the date such Other Weighted Average Yield for the Term Loans are made exceeds the Adjusted Eurodollar RateB-78 Loans; (viii) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The all other terms of the Incremental Additional Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with (other than as set forth in clauses (iv) through (vii) above), if more restrictive, taken as a whole, than the terms applicable to the Term B-78 Loans hereunder (as determined by the Borrower in its reasonable business judgment), such other terms shall otherwise be reasonably satisfactory acceptable to the Borrower and the Administrative AgentAgent (it being understood and agreed that any Customary Term A Loans and revolving credit facilities may have one or more financial compliance covenants and such covenant shall not be determined to be more restrictive); and(ix) the security interest and guaranties benefiting the Additional Term Loans (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing credit facilities provided for herein; and (x) any Additional Term Loans shall share on a pro rata basis in any mandatory prepayments with the Term B-78 Loans (other than any mandatory prepayment resulting from the incurrence of Refinancing Term Loans or Refinancing Equivalent Debt that is incurred to refinance a specific Class of Loans) or, if agreed to by the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events lenders of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Additional Term Loans, on a less than pro rata basis (but in no event on a greater than pro rata basis).
(b) Each such notice shall specify (x) the existing Lenders date (each, an “Additional Commitments Effective Date”) on which Borrower proposes that the Additional Commitments shall be entitled effective, which shall be a date reasonably acceptable to Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the benefit effectiveness of any Additional Commitments, Borrower shall deliver to Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by an Authorized Officer of Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof), the condition set forth in Section 2.14(a)(iv) is satisfied.
(c) On each Additional Commitments Effective Date with respect to any Additional Commitment, each Person with an Additional Commitment shall make an Additional Term Loan to Borrower in a principal amount equal to such covenantsPerson’s Additional Commitment.
(d) At any time and from time to time, events of default, representations subject to the terms and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully conditions set forth herein, without any further action required on the part Borrower may issue one or more series of any Person effective Incremental Equivalent Debt in an aggregate principal amount not to exceed, as of the date of and after giving effect to the issuance of any such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees thatEquivalent Debt, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such BorrowingCap.
(e) Both immediately before and immediately after giving effect to The issuance of any Incremental Term Loan CommitmentEquivalent Debt pursuant to this Section 2.14, shall (i) in all cases, be subject to the borrowings thereunder terms and the application of proceeds therefromconditions applicable to Additional Commitments set forth under Sections 2.14(a)(i), (Aa)(ii), (a)(iii), (a)(v), (a)(vi), (a)(vii) no Event (if such Incremental Equivalent Debt is in the form of Default shall have occurred and be continuing or would exist after giving effect thereto term “B” loans secured on a pari passu basis with the Term B- 78 Loans) and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”a)(viii), which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary if set forth in this Section 2.15 or in any other provision of any Loan Document2.14(e), if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition mutatis mutandis (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loansand, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.for the
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take This Section 2.14 shall supersede any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth provisions in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.3.06 or Section 10.01
Appears in 1 contract
Sources: Amendment Agreement (Avient Corp)
Increase in Commitments. (a) The Borrower may, by written notice From time to the Administrative Agent at any time on and after the Closing Date and prior to the Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Revolving Credit Termination Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement no Default or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and continuing, the Borrower may, upon at least 30 days notice to the Administrative Agent (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as promptly provide a copy of such date notice to the same extent as though made on and as Lenders), propose to increase the aggregate amount of that date, except to the extent such representations and warranties specifically relate to Commitments by an earlier date, in amount which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event is not less than $10,000,000 or, if greater, an integral multiple of Default under $5,000,000 in excess thereof, with respect to any such request nor (ii) when aggregated with all prior and concurrent increases in the Commitments pursuant to this Section 8.01(a2.19, is not in excess of $50,000,000. The Borrower may increase the aggregate amount of the Commitments by (x) having another lender or lenders (each, an “Additional Lender”) become party to this Agreement, (y) agreeing with any Lender (with the consent of such Lender in its sole discretion) to increase its Commitment hereunder (each, an “Increasing Lender”) or (iz) exists or would result from a combination of the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to procedures described in clauses (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loanthis sentence.
(fb) Upon any increase in the amount of the Commitments pursuant to this Section 2.19 (each, an “Additional Commitment”):
(i) Each Additional Lender or existing Lender agreeing to increase its Commitments pursuant to this Section 2.19 shall enter into a Joinder Agreement pursuant to which such Additional Lender and/or Increasing Lender shall, as of the parties hereto hereby agrees effective date, undertake an Additional Commitment (or, in the case of an Increasing Lender, pursuant to which such Increasing Lender’s Commitment shall be increased in the agreed amount on such date) and such Additional Lender shall thereupon become (or, if an Increasing Lender, continue to be) a “Lender” for all purposes hereof.
(ii) The Borrower shall in the event of an increase in the Commitments, in coordination with the Administrative Agent, repay all outstanding Revolving Loans and incur additional Revolving Loans from other Lenders in each case so that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included Lenders participate in each Borrowing of outstanding Term Loans on a pro rata basis, and on the Borrower agrees that Section 3.02 shall apply basis of their respective Commitments (after giving effect to any conversion increase in the Commitments pursuant to this Section 2.19) and amounts payable under Section 2.17 as a result of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) actions required to be made after the making of such Incremental Term Loans taken under this Section 2.19, shall be ratably increased paid in full by the aggregate principal amount of Borrower; and
(iii) If any such Incremental Term LoansAdditional Lender is a Foreign Lender, such Additional Lender shall deliver the forms required by Section 2.16(e).
Appears in 1 contract
Increase in Commitments. (a) The Borrower mayAlcoa may from time to time, by written notice to the Administrative Agent at any time after the Closing Date Agent, executed by Alcoa and prior to the Term Loan Maturity Date, request on one or more occasionsfinancial institutions (any such financial institution referred to in this Section being called a “Prospective Lender”), up which may include any Lender, cause the Commitments of the Prospective Lenders to three in be increased (or cause Commitments to be extended by the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Prospective Lenders, (which as the case may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)be) in an aggregate principal amount not to exceed for each Prospective Lender set forth in such notice; provided, however, that (i) the amount of any such increase in the Commitments shall be no less than $25,000,000, (ii) the sum of (i) $50,000,000 plus (ii) an unlimited amountthe aggregate amount of increases in Commitments under this Section 2.20, so long asthe aggregate amount of increases in commitments under Section 2.20 of the 2003 Five-Year Credit Agreement and the aggregate amount of increases in commitments under Section 2.20 of the 2005 Five-Year Credit Agreement, in each case during the case term of this clause (ii)Agreement, after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided$500,000,000, that (iii) each Incremental Term Prospective Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which approval shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished (iv) each Prospective Lender, if not already a Lender hereunder, shall become a party to this Agreement by completing and delivering to the other Administrative Agent a duly executed Accession Agreement. Increases in Commitments and new Commitments created pursuant to this Section shall become effective (A) in the case of Prospective Lenders already parties hereto.
, on the date specified in the notice delivered pursuant to this Section and (cB) All Incremental Term Loans in the case of Prospective Lenders not already parties hereunder, on the effective date of the Accession Agreement. Upon the effectiveness of any Accession Agreement to which any Prospective Lender is a party, (i) such Prospective Lender shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will thereafter be secured by the Collateral deemed to be a party to this Agreement and shall be guaranteed by entitled to all rights, benefits and privileges accorded a Lender hereunder and subject to all obligations of a Lender hereunder and (ii) Schedule 2.01 shall be deemed to have been amended to reflect the Subsidiary Guarantors.
(d) Commitment of the additional Lender as provided in such Accession Agreement. Upon the effectiveness of any increase pursuant to this Section in the Commitment of a Lender already a party hereunder, Schedule 2.01 shall be deemed to have been amended to reflect the increased Commitment of such Lender. Notwithstanding the foregoing, no Incremental Term Loan increase in the aggregate Commitments (or in the Commitment of any Lender) shall become effective under this Section 2.15 unless (i) the Administrative Agent shall have received documents consistent with those delivered under paragraphs (a) and (c) of Section 4.01 as to the corporate power and authority of Alcoa to borrow hereunder after giving effect to such increase and (ii) on the date of such effectivenessincrease, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied (or waivedwith all references in such paragraphs to a Borrowing being deemed to be references to such increase) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of Alcoa. Following any increase of a Lender’s Commitment or any extension of a new Commitment pursuant to this paragraph, any Loans outstanding prior to the Borrower, (ii) effectiveness of such increase or extension shall continue outstanding until the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on ends of the Closing Daterespective Interest Periods applicable thereto, and (iii) the Credit Parties and their Subsidiaries would shall then be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect repaid or refinanced with new Loans made pursuant to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date2.01; provided that, that notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicableAgreement, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect conditions to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments borrowing set forth in Section 2.12(b) 4.02 shall not apply to such new Loans to the extent they are in a principal amount not greater than that of the Loans being refinanced. Notwithstanding anything to the contrary in this Agreement, no Lender shall be required to be a Prospective Lender. ACCESSION AGREEMENT dated as of [·], among [ ] (the “Acceding Lender”), ALCOA INC., a Pennsylvania corporation (“Alcoa”), and JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative Agent”) for the Lenders (as defined in the Credit Agreement referred to below).
A. Reference is made after to the making Five-Year Revolving Credit Agreement dated as of April 23, 2004 (as amended from time to time, the “Credit Agreement”), among Alcoa, the Lenders and JPMorgan Chase Bank, N.A. (“JPMCB”), as Administrative Agent.
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such Incremental Term Loans shall be ratably increased by terms in the aggregate principal amount Credit Agreement.
C. Pursuant to Section 2.20(a) of such Incremental Term Loans.the Credit Agreement, Alcoa has invited the Acceding Lender, and the Acceding Lender desires, to become a party to the Credit Agreement and to assume the obligations of a Lender thereunder. The Acceding Lender is entering into this Agreement in accordance with the provisions of the Credit Agreement in order to become a Lender thereunder. Accordingly, the Acceding Lender, Alcoa and the Administrative Agent agree as follows:
Appears in 1 contract
Increase in Commitments. (a) The Borrower maymay request (in writing) Incremental Commitments in an aggregate amount not to exceed, by written notice to the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, $750,000,000 (minus the aggregate principal amount of all Indebtedness issued pursuant to Section 8.2(p) on or prior to the date of such request, but not to be reduced by the aggregate principal amount of any such Incremental Term Loan Commitments Loans, or Indebtedness issued pursuant to Section 8.2(p), the proceeds of which are applied to the refinancing of all or any portion of the Tranche B Term Loans), in increments of (x) no less than $75,000,000 (or such lesser amount if the remaining available Incremental Commitment pursuant to this Section 2.4 is less than $75,000,000) at any one time with respect to Incremental Term Loans and (y) no less than $5,000,000 (or such lesser amount if the remaining available Incremental Commitment pursuant to this Section 2.4 is less than $5,000,000) at any one time with respect to Incremental Revolving Loans, from one or more Incremental Term LendersLenders (approved by the Administrative Agent if such Incremental Lender is not already a Revolving Lender and is to be a Revolving Lender after the effective date of the applicable Incremental Commitment Agreement) willing to provide such Incremental Commitments. Requests for such Incremental Commitments may be, at the Borrower’s option, for Incremental Revolving Loans (which may or may not include at any existing Lender (each time prior to the later of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus Revolving Termination Date and (ii) an unlimited amountthe latest Extended Revolving Termination Date, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such if any) and/or Incremental Term Loan and Loans. In the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” event the cash proceeds of any Borrower shall request Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice such request shall set forth (i) the amount of the Incremental Term Loan Commitments Loans being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000)requested, (ii) the date on which such Incremental Term Loan Commitments Loans are requested to become effective be made, (iii) any requested differences between the Incremental Term Loans and the existing Tranche B-2 Term Loans (which shall not be less effective until set forth in an executed Incremental Commitment Agreement executed by the Group Members and each applicable Incremental Lender), provided, that in any event (A) the Weighted Average Life to Maturity of all Incremental Term Loans shall be no shorter than 15 days nor more than 60 days after the date Weighted Average Life to Maturity of the Tranche B-2 Term Loans at the time of the borrowing of such noticeIncremental Term Loan, unless otherwise agreed to by the Administrative Agent) and (iiiB) the Maturity Date of any Incremental Term Loans shall be no shorter than the final maturity of the Tranche B-2 Term Loans, and (iv) whether such Incremental Term Loan Commitments Loans are to be have the same yield (taking into account the interest rate margin and after giving effect to all upfront fees or similar fees on original issue discount (“OID”) as to the Tranche B-1 Term Commitments Loans or commitments whether such Incremental Term Loans are to make term loans with terms have a different from yield than the Tranche B-1 Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without if the prior written consent of the Required Lenders, (i) the final maturity date yield in respect of any Other Term Loans shall be no earlier than Loan exceeds the Term Loan Maturity Date and (ii) yield for the weighted average life to maturity of any Other Tranche B-1 Term Loans shall be no shorter than the remaining weighted average life to maturity of Applicable Margin for the Closing Date Tranche B-1 Term Loans, and provided, further, thatand, if applicable, the Initial Yield on such Other Tranche B-2 Term Loans exceeds by more than 0.50% Loans, shall be increased so that the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date yield in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount giving effect to any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee similar fees or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent OID issued in connection with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, ) is no higher than the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, yield for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12Tranche B-1 Term Loans. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans (including Other Term Loans) shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with otherwise be made on substantially identical terms as the initial Tranche B-2 Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions except as set forth in Section 4.02 shall be satisfied (or waived) and any applicable Incremental Commitment Agreement, and, in the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer case of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Other Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the interest rate margin applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative thereto. No Agent may, with the Borrower’s prior written consent, take any and all action as may or Lender shall be reasonably necessary obligated to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent deliver or fund any Incremental Term Loans are not Other Term Loans, Commitment. The Borrower may borrow under the scheduled amortization payments set forth in Section 2.12(b) required to be made after Incremental Commitments only five times during the making term of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loansthis Agreement.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Metropcs Communications Inc)
Increase in Commitments. (ai) The Borrower may, by written notice Subject to the Administrative Agent at any time after conditions set forth in clauses (ii) and (iii) of this Section 2.02(a), the Closing Date and prior to Co-Borrowers may request that the Term Loan Maturity Date, request on amount of the aggregate Commitments be increased one or more occasionstimes, up to three 4812-0911-1547, v. 7 in each case in a minimum amount of $2,500,000 or in integral multiples of $2,500,000 in excess thereof; provided that the aggregate, Incremental Term Loan aggregate Commitments from one or more Incremental Term Lenders, (which may or after any such increase may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus 250,000,000.
(ii) an unlimited amountEach such increase shall be effective only upon the following conditions being satisfied: (A) no Default or Event of Default has occurred and is continuing at the time thereof or would be caused thereby, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, B) immediately before and after giving effect to such increase, the Loan Parties shall be in pro forma effect compliance with the financial covenants in Section 7.09, together with calculations and any supporting documentation demonstrating such pro forma compliance in form and substance reasonably satisfactory to any Permitted Acquisitionthe Agent, Investment (C) either the Banks having Commitments hereunder at the time the increase is requested agree to increase their Commitments in their sole discretion in the amount of the requested increase or other transaction consummated financial institutions agree to make a Commitment in connection therewith)the amount of the difference between the amount of the increase requested by the Co-Borrowers and the amount by which some or all of the Banks having Commitments hereunder at the time the increase is requested agree to increase their Commitments, the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, (D) such increase shall be subject to the approval of the Administrative Agent in its discretion (and the Issuing Banks, which consent shall not to be unreasonably withheld, conditioned or delayed). Such notice , (E) such Banks and other financial institutions, if any, shall set forth have executed and delivered to the Agent a Commitment Increase Agreement or a New Bank Agreement, as applicable, and (iF) the amount Co-Borrowers shall have delivered such evidence of authority for the increase (including without limitation, certified resolutions of the Incremental Term Loan Commitments being requested (which shall be in minimum increments applicable managers and/or members of $1,000,000 and a minimum amount of $5,000,000), (iithe Co-Borrowers authorizing such increase) as the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and Agent may reasonably request.
(iii) whether such Incremental Term Loan Commitments are Each financing institution to be Term Commitments or commitments added to make term loans with terms different from the Term Loans (“Other Term Loans”).
(bthis Agreement as described in Section 2.02(a)(ii)(C) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender above shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify a New Bank Agreement, pursuant to evidence the Incremental Term Loan Commitment of such Incremental Term Lenderwhich it becomes a party to this Agreement. Each Incremental Term Loan Assumption Agreement Bank agreeing to increase its Commitment as described in Section 2.02(a)(ii)(C) shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date execute and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal deliver to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (Agent a Commitment Increase Agreement pursuant to which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of it increases its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) fourCommitment hereunder. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; andIn addition, to the extent that required by the applicable Bank, a Responsible Officer shall execute and deliver to the Agent, for each Bank being added to this Agreement, a Note payable to such Incremental Term Loan Assumption new Bank in the principal amount of the Commitment of such Bank, and for each Bank increasing its Commitment, a Note (replacement Note, if applicable) payable to such Bank, in the principal amount of the increased Commitment of such Bank. Each such Note shall be dated the effective date of the pertinent New Bank Agreement contains or Commitment Increase Agreement. In the event a replacement Note is issued to a Bank, such Bank shall ▇▇▇▇ the original note as “REPLACED” and shall return such original Note to the Co-Borrowers. Upon execution and delivery to the Agent of the Note (if required by the applicable Bank) and the execution by 4812-0911-1547, v. 7 the Agent of the relevant New Bank Agreement or Commitment Increase Agreement, as the case may be, such new financing institution shall constitute a “Bank” hereunder with a Commitment as specified therein, or such existing Bank’s Commitment shall increase as specified therein, as the case may be, and the Agent shall notify the Co-Borrowers and all Banks of such additions or increases, and the final allocations thereof, and provide a revised Schedule 2.01 reflecting such additions or increases together with a schedule showing the revised Working Capital Advance Cap and L/C Cap as increased pursuant to Section 2.02(b) below.
(iv) Notwithstanding anything to the contrary in this Section 2.02(a), the Banks having Commitments hereunder at the time any covenantssuch increase is requested shall have the first right, events of defaultbut shall not be obligated, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of to participate in such increase by agreeing to increase their respective Subsidiaries that are more favorable Commitments by their Credit Percentage to the Lenders making extent of such Other Term Loansincrease. The Agent shall not, and shall not be obligated to, permit any financial institutions that do not have, at that time, Commitments hereunder to make commitments for portions of the existing Lenders shall be entitled requested increase not assumed by the Banks having Commitments hereunder until each of such Banks have agreed to increase their Commitments or declined to do so. To facilitate the Banks’ right of first refusal, HoldCo shall, by written notice to the benefit Agent (which shall promptly deliver a copy to each Bank) given not less than 15 days prior to the requested effective date of the increase in Commitments (the “Increase Effective Date”), request that the Banks increase their Commitments. Each Bank shall, by notice to HoldCo and the Agent given not later than 15 days following receipt of HoldCo’s request, advise HoldCo whether or not it will increase its Commitment as of the Increase Effective Date. Any Bank that has not so advised HoldCo and the Agent by such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions day shall be deemed automatically incorporated to have declined to agree to such increase in its Commitment. The decision to increase its Commitment hereunder shall be at the sole discretion of each Bank.
(v) If, after giving effect to any increase under this Section 2.02(a), the outstanding Working Capital Loans would not be held pro rata in accordance with the new Commitments, the Banks (including, without limitation, any new Bank) shall, on the effective date of the applicable increase, make advances among themselves so that after giving effect thereto the Working Capital Loans will be held by reference into the Banks (including, without limitation, any new Banks), on a pro rata basis in accordance with their respective Commitments hereunder (after giving effect to the applicable increase). Each Bank agrees to wire immediately available funds to the Agent in accordance with this AgreementAgreement as may be required by Agent in connection with the foregoing. Upon the effective date of each increase under this Section 2.02(a), mutatis mutandis, as if fully set forth herein, the Commitments of the Banks shall reflect the changes contemplated under the applicable New Bank Agreement and/or Commitment Increase Agreement without any further action required on the part or consent of any Person effective as party, and each Bank hereby agrees to the 4812-0911-1547, v. 7 reallocation of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender Commitments as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent necessary (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, andbut, for the avoidance of doubt, this Section 2.15(bnot any change in such Bank’s Commitment unless otherwise agreed in writing) such that after giving effect thereto, all Banks shall supersede any provisions to the contrary hold Working Capital Loans in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent their respective Pro Rata Shares (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loanincrease).
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, by written notice to the Administrative Agent at At any time after until December 31, 2000, Borrower may make a one-time request to increase the Closing Date and prior to the Term Loan Maturity Date, request on one or more occasions, combined Commitments up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be 100,000,000 in minimum increments of $1,000,000 and a minimum amount of $5,000,000)10,000,000, (ii) the date on which such Incremental Term Loan Commitments are requested upon Requisite Notice to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether , accompanied by such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation documents evidencing corporate approval thereof as the Administrative Agent shall may reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreementrequest. The Administrative Agent shall promptly notify each Lender as Bank of such request. Each Bank shall have 30 days to respond whether, in its sole discretion, (i) it agrees to increase its Commitment by an amount equal to its Pro Rata Share of such requested increase, (ii) it agrees to increase its Commitment by an amount less than its Pro Rata Share of such requested increase or (iii) it does not agree to increase its Commitment. Any Bank that has not responded within the above time period shall be deemed not to have elected not to increase its Commitment.
(b) To the extent that any Bank declines, or is deemed to have declined, to participate in any such increase to the effectiveness full extent of each Incremental Term Loan Assumption Agreement its Pro Rata Share (a "DECLINING BANK"), Borrower may request, through the Administrative Agent, that one or such more other joinder agreement or amendment. Each Banks, in their sole discretion, further increase their Commitment(s) by the amount of the parties hereto hereby agrees thatincrease declined by the Declining Bank(s). Borrower shall execute and deliver amended Notes, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendmentas necessary, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrowershall distribute an amended SCHEDULE 2.01 (which shall thereafter be incorporated into this Agreement), to effectuate reflect any increase in the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) Commitments and furnished to the other parties heretoeach Bank's Pro Rata Share thereof.
(c) All Incremental Term In order to make all Bank's interests in any outstanding Loans shall rank pari passu ratable in rights of payment, prepayment, voting, security, and lien priorities accordance with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately revised Pro Rata Shares after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and increase in the other Loan Documents Commitments, Borrower shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” pay or “material adverse effect”prepay, which shall be true and correct in all respects) if necessary, on and as of such the effective date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Documentsuch increase, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, all outstanding Loans and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In additionpay, to the extent applicable, any Incremental Term amounts due under SECTION 3.06. Borrower may then reborrow, if it desires to do so, such Loans are not Other Term Loansfrom the Banks in accordance with their revised Pro Rata Shares. The Bank's Pro Rata Shares of Letter of Credit Usage shall also be deemed adjusted, on the scheduled amortization payments set forth in Section 2.12(b) required effective of any such increase, so that each Bank's pro rata share thereof is equal to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loansits revised Pro Rata Share.
Appears in 1 contract
Sources: Credit Agreement (Todd Ao Corp)
Increase in Commitments. (a) The Borrower mayAlcoa may from time to time, by written notice to the Administrative Agent at any time after the Closing Date Agent, executed by Alcoa and prior to the Term Loan Maturity Date, request on one or more occasionsfinancial institutions (any such financial institution referred to in this Section being called a “Prospective Lender”), up which may include any Lender, cause the Commitments of the Prospective Lenders to three in be increased (or cause Commitments to be extended by the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Prospective Lenders, (which as the case may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)be) in an aggregate principal amount not to exceed for each Prospective Lender set forth in such notice; provided, however, that (i) the amount of any such increase in the Commitments shall be no less than $25,000,000, (ii) the sum of (i) $50,000,000 plus (ii) an unlimited amountthe aggregate amount of increases in Commitments under this Section 2.20, so long asthe aggregate amount of increases in commitments under Section 2.20 of the 2004 Five-Year Credit Agreement and the aggregate amount of increases in commitments under Section 2.20 of the 2005 Five-Year Credit Agreement, in each case during the case term of this clause (ii)Agreement, after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided$500,000,000, that (iii) each Incremental Term Prospective Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which approval shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished (iv) each Prospective Lender, if not already a Lender hereunder, shall become a party to this Agreement by completing and delivering to the other Administrative Agent a duly executed Accession Agreement. Increases in Commitments and new Commitments created pursuant to this Section shall become effective (A) in the case of Prospective Lenders already parties hereto.
, on the date specified in the notice delivered pursuant to this Section and (cB) All Incremental Term Loans in the case of Prospective Lenders not already parties hereunder, on the effective date of the Accession Agreement. Upon the effectiveness of any Accession Agreement to which any Prospective Lender is a party, (i) such Prospective Lender shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will thereafter be secured by the Collateral deemed to be a party to this Agreement and shall be guaranteed by entitled to all rights, benefits and privileges accorded a Lender hereunder and subject to all obligations of a Lender hereunder and (ii) Schedule 2.01 shall be deemed to have been amended to reflect the Subsidiary Guarantors.
(d) Commitment of the additional Lender as provided in such Accession Agreement. Upon the effectiveness of any increase pursuant to this Section in the Commitment of a Lender already a party hereunder, Schedule 2.01 shall be deemed to have been amended to reflect the increased Commitment of such Lender. Notwithstanding the foregoing, no Incremental Term Loan increase in the aggregate Commitments (or in the Commitment of any Lender) shall become effective under this Section 2.15 unless (i) the Administrative Agent shall have received documents consistent with those delivered under paragraphs (a) and (c) of Section 4.01 as to the corporate power and authority of Alcoa to borrow hereunder after giving effect to such increase and (ii) on the date of such effectivenessincrease, the conditions set forth in paragraphs (b) and (c) of Section 4.02 shall be satisfied (or waivedwith all references in such paragraphs to a Borrowing being deemed to be references to such increase) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of Alcoa. Following any increase of a Lender’s Commitment or any extension of a new Commitment pursuant to this paragraph, any Loans outstanding prior to the Borrower, (ii) effectiveness of such increase or extension shall continue outstanding until the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on ends of the Closing Daterespective Interest Periods applicable thereto, and (iii) the Credit Parties and their Subsidiaries would shall then be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect repaid or refinanced with new Loans made pursuant to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date2.01; provided that, that notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicableAgreement, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect conditions to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments borrowing set forth in Section 2.12(b) 4.02 shall not apply to such new Loans to the extent they are in a principal amount not greater than that of the Loans being refinanced. Notwithstanding anything to the contrary in this Agreement, no Lender shall be required to be a Prospective Lender. ACCESSION AGREEMENT dated as of [•], among [ ] (the “Acceding Lender”), ALCOA INC., a Pennsylvania corporation (“Alcoa”), and JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative Agent”) for the Lenders (as defined in the Credit Agreement referred to below).
A. Reference is made after to the making Credit Agreement (Five-Year) dated as of April 25, 2003 (as amended from time to time, the “Credit Agreement”), among Alcoa, the Lenders and JPMorgan Chase Bank, N.A. (“JPMCB”), as Administrative Agent.
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such Incremental Term Loans shall be ratably increased by terms in the aggregate principal amount Credit Agreement.
C. Pursuant to Section 2.20(a) of such Incremental Term Loans.the Credit Agreement, Alcoa has invited the Acceding Lender, and the Acceding Lender desires, to become a party to the Credit Agreement and to assume the obligations of a Lender thereunder. The Acceding Lender is entering into this Agreement in accordance with the provisions of the Credit Agreement in order to become a Lender thereunder. Accordingly, the Acceding Lender, Alcoa and the Administrative Agent agree as follows:
Appears in 1 contract
Increase in Commitments. (a) The Borrower maymay at any time or from time to time after the Effective Date, by written notice to the Administrative Agent at any time after (whereupon the Closing Date and prior Administrative Agent shall promptly deliver a copy to each of the Term Loan Maturity DateLenders), request on (x) one or more occasionsnew commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any Term Loan Increase, up to three in the aggregate, “Incremental Term Loan Commitments from Loans”), or (y) one or more increases in the amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”, together with any Incremental Term LendersLoans, referred to herein as an “Incremental Facility”), provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility, (x) no Default or Event of Default has occurred and is continuing or would result therefrom (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, (A) no Event of Default shall be continuing at the time of execution of the applicable contract or agreement for such acquisition and (B) no Event of Default under Sections 7.01(a), (b), (h) or (i) shall be continuing at the time of making such acquisition)) and (y) the condition in Section 4.02(b) shall be satisfied (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, such representations shall be limited to the Specified Representations (as defined in the Existing Credit Agreement, which may or may not include shall be conformed as reasonably necessary for such acquisition to provide for certainty of funding in connection with such transaction)), (ii) no Lender shall be obligated to provide an Incremental Facility as a result of any existing such request by the Borrower, and until such time, if any, as such Lender (each of which may be entitled to agree or decline to participate has agreed in its sole discretion to provide an Incremental Facility and executed and delivered to the Administrative Agent and the Borrower an Incremental Facility Agreement as provided in clause (c) of this Section 2.23, such Lender shall not be 59562397_5 LEGAL_US_E # 113892680.8124105178.14 obligated to fund any Incremental Facility, (iii) any Lender may so provide an Incremental Facility without the consent of any other Lender, (iv) Incremental Facilities shall be denominated in dollars, (v) the Incremental Loan Commitment Requirements shall have been satisfied, and (vi) the provision of Incremental Facilities pursuant to this Section 2.23 on a given date pursuant to a particular Incremental Facility Agreement shall be in a minimum aggregate amount of $5,000,000 (provided that such amount may be less than $5,000,000 if so offered such amount represents all remaining availability under the opportunity limit set forth in the next sentence). Notwithstanding anything to do so)) in an the contrary herein, the aggregate principal amount of the Incremental Facilities shall not to exceed the sum of (the “Incremental Cap”): (i) $50,000,000 75,000,000 plus (ii) an unlimited amount, amount so long as, in the case of this clause (ii), the First Lien Net Leverage Ratio would not exceed 0.24.25:1.00 below the First Lien Net Leverage Ratio on the First Amendment Effective Date, calculated at the time of incurrence on a pro forma basis after giving pro forma effect to the Borrowing of such Incremental Term Loan thereto and the application of the proceeds therefrom thereof, and assuming any such Incremental Facility is secured on a first lien basis, whether or not so secured (and, in the case of any Revolving Commitment Increase, assuming all a full drawing of such Revolving Commitment Increase). The amount of such Incremental Facility together with any Incremental Equivalent Debt shall not exceed the Incremental Cap.
(b) The Incremental Term Loans (i) shall rank pari passu in right of payment and pari passu or junior (subject to an intercreditor agreement reasonably satisfactory in form and substance to the Administrative Agent) with respect to security with the existing Term Loans, shall not be guaranteed by any Person that has not guaranteed the existing Term Loans and shall not be secured by assets other than Collateral; (ii) shall mature on such date and amortize on such schedule as each may be agreed by the Borrower and the Lenders providing such Incremental Term Loan, provided that, as of the date of incurrence, no Incremental Term Loan Commitments were fully drawn shall mature earlier than the Term Maturity Date and, as of the date of incurrence, each Incremental Term Loan shall have a Weighted Average Life to Maturity that is no shorter than the then remaining Weighted Average Life to Maturity of the existing Term Loans; (iii) except with respect to the applicable interest rate (subject to clause (e) below) and without “netting” as set forth in this clause (b), shall be on terms and pursuant to documentation determined by the cash proceeds of any Borrower and the Additional Lenders providing the Incremental Term Loans, (iv) may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis (except in respect of any voluntary prepayments of any Class of Loans with an earlier maturity date than any other Class of Loans or in the case of any permitted refinancing thereof)) in any voluntary or mandatory prepayments of Loans hereunder; and after giving pro forma effect (v) may include any Previously Absent Financial Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Covenant for the benefit of each Class (provided, however, that if (x) the documentation governing any Permitted Acquisition, Investment or other transaction consummated Incremental Facility that includes a Previously Absent Financial Covenant in connection therewithrespect of and for the benefit of an Incremental Revolving Commitment Increase only and (y) such Previously Absent Financial Covenant is a “springing” financial maintenance covenant solely for the benefit of a Class of Revolving Loans (and not any Class of Term Loans), the Leverage Ratio Previously Absent Financial Covenant shall only be required to be included in this Agreement for the benefit of Revolving Loans); provided that (x) the terms and conditions applicable to the Incremental Term Loans may also include any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof so long as such additional covenants or other provisions are applicable only during periods after the latest Maturity Date for the Term Loans in effect on the date the Incremental Term Loans are issued, incurred or obtained or the date on which all non-refinanced Obligations are paid in full and (y) to the extent such terms and documentation are not exceed 2.50:1.00consistent with the existing Term Loans (except with respect to the applicable interest rate, upfront fees, original issue discount or similar fees and as otherwise set forth in this paragraph), such terms and documentation shall be reasonably satisfactory to the Administrative Agent; provided, further, that each (x) any Incremental Term LenderLoans that rank pari passu in right of security and are issued pursuant to an agreement other than this 59562397_5 LEGAL_US_E # 113892680.8124105178.14 Agreement shall be in the form of notes and not loans and (y) to the extent such Incremental Term Loans rank junior with respect to security with the existing Term Loans, if not already a Lender hereunder, such Incremental Term Loans shall be subject to an intercreditor arrangement reasonably satisfactory to the approval Administrative Agent.
(c) Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Borrower and the Administrative Agent and, in its discretion the case of a Revolving Commitment Increase, the Issuing Bank and each Swingline Lender shall have consented (such consents not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, as applicable. Commitments in respect of Incremental Facilities shall become effective pursuant to an amendment (an “Incremental Facility Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Facilities, if any, each Additional Lender, if any, and the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the The Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000)Facility Agreement may, (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the any other Lenders hereto Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, Borrower to effectuate effect the provisions of this Section 2.15, and, for the avoidance 2.22. The effectiveness of doubt, this Section 2.15(b) any Incremental Facility Agreement shall supersede any provisions be subject to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of such effectiveness, each of the conditions set forth in Section 4.02 (other than as set forth in clause (a) of this Section 2.23) and such other conditions as the parties thereto shall agree.
(d) The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be satisfied (or waived) obligated to provide any Incremental Facility, unless it so agrees in writing. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.23, each Revolving Lender immediately prior to such increase will automatically and the Administrative Agent shall without further act be deemed to have received assigned to each Lender providing a certificate to that effect dated such date and executed by a Financial Officer portion of the BorrowerRevolving Commitment Increase (each, a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Credit Commitment. In addition, (x) each of the Revolving Credit Lenders immediately prior to such increase shall assign to each Revolving Commitment Increase Lender and each of the Incremental Revolving CreditCommitment Increase Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Incremental Revolving Loans outstanding on such Incremental Facility Agreement closing date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Credit Lenders and Revolving Commitment Increase Lender ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Revolving Commitment Increases, (y) each Incremental Revolving Credit Commitment Increase shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (z) each Incremental Revolving CreditCommitment Increase Lender shall become a Lender with respect to the Incremental Revolving Credit 59562397_5 LEGAL_US_E # 113892680.8124105178.14 CommitmentsCommitment Increase and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall have received legal opinions, board resolutions not apply to the transactions effected pursuant to the immediately two preceding sentences so long as the Revolving Lenders and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does Lenders do not exceed 0.25 to 1.00 receive less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowingpro rata treatment.
(e) Both immediately before The All-In Yield applicable to the Incremental Facility, that is secured on a pari passu basis with the Obligations, shall be determined by the Borrower and immediately after giving effect the applicable lenders and shall be set forth in each applicable Incremental Facility Agreement; provided, however, that (A) with respect to any Incremental Term Loan CommitmentFacilityTerm Loans, the borrowings thereunder and All-In Yield applicable to such Incremental FacilityTerm Loans shall not be greater than the application applicable All-In Yield payable pursuant to the terms of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) this Agreement as amended through the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as date of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder calculation with respect to Term Loans existing at such time plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the Adjusted LIBO Rate floor or Alternate Base Rate floor) with respect to such Term Loans is increased so as to cause the then applicable Type All-In Yield under this Agreement on such Term Loans to equal the All-In Yield then applicable to the Incremental FacilityTerm Loans minus 50 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of a Adjusted LIBO Rate floor or Alternate Base Rate floor on any Incremental Facility shall be effected solely through an increase in (or implementation of, as applicable) of a Adjusted LIBO Rate floor or Alternate Base Rate floor for such Loan. For the avoidance of doubt this clause (e) shall not apply to Incremental Equivalent Debt incurred in compliance with clause (f) below.
(f) Each The Borrower may, upon notice to the Administrative Agent, at any time or from time to time after the Effective Date, issue, incur or otherwise obtain Indebtedness of the parties hereto hereby agrees Borrower (and any refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or secured on a pari passu or junior lien basis with the Obligations under the initial Loans), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Facility (the “Incremental Equivalent Debt”); provided that (i) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of any Loan Party or any Restricted Subsidiary other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any guarantee by any Person other than the Loan Guarantors, (ii) if such Incremental Equivalent Debt is (x) secured on a pari passu or junior basis with the Obligations under the initial Loans, then such Incremental Equivalent Debt shall be subject to an intercreditor agreement that is reasonably satisfactory, in form and substance, to the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 or (y) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall apply be subject to any conversion of Eurodollar Loans which are Term Loans a lien subordination and intercreditor arrangement reasonably satisfactory, in form and substance, to Base Rate Loans reasonably required by the Administrative Agent and the Borrower, (iii) such Incremental Equivalent Debt (A) shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing and (B) shall not have a Weighted Average Life to effect Maturity which is shorter than the foregoing. In additionWeighted Average Life to Maturity of the then existing Term Loans, (iv) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any Incremental Term such mandatory redemption or prepayment is required to be applied first or pro rata to the Loans are not Other Term Loansand any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, the scheduled amortization payments customary offers to repurchase and prepayment events upon a change of control and a customary acceleration right after an event of default), (v) except as otherwise set forth in Section 2.12(b) required to be made after the making of this clause (f), such Incremental Term Loans Equivalent Debt shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.have covenants and de
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, by written Upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments denominated in any currency to be incurred by the Borrower and/or any U.S. Subsidiary 102
(b) Any loans made in respect of any such additional Term Commitments (the “Incremental Term Loans”) may be made, at the option of the Borrower, either by (i) increasing the Initial Term Loans or the 2022 Incremental Term B-2 Loans with the same terms (including pricing) as the existing Initial Term Loans or the 2022 Incremental Term B-2 Loans, as applicable, or (ii) creating a new tranche of terms loans (an “Incremental Term Loan Class”); provided that any time after the Closing Date and Incremental Term Loan Class (A) shall not mature prior to the Term Loan stated Maturity Date, request on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect Date applicable to the Borrowing latest maturing Class of Term Loans on the date of incurrence of such Incremental Term Loan and Loans, (B) the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds Weighted Average Life to Maturity of any Incremental Term Loan Class shall be no less than the Weighted Average Life to Maturity of such latest maturing Class of Term Loans and (C) any Incremental Term Loans may participate on a pro rata basis, a less than pro rata basis (or, solely as compared to any later maturing Class of Term Loans, greater than pro rata basis) in any mandatory prepayments (but on a pro rata basis, greater than pro rata basis or a less than pro rata basis in any voluntary prepayments) with the then outstanding Term Loans; provided that clauses (A) and after giving pro forma effect (B) above shall not apply to (X) any Permitted Acquisitioncustomary bridge loans so long as any loans, Investment notes, securities or other transaction consummated Indebtedness which exchanged for or otherwise replace such bridge loans satisfies (or will satisfy at the time of incurrence or rollover) the requirements of such clauses and (Y) Incremental Facilities with an aggregate outstanding principal amount not in connection therewithexcess of $350,000,000.
(c) Any such additional Revolving Credit Commitments may be made by (x) establishing one or more additional Classes of revolving credit commitments (an “Incremental Revolving Facility”), ; provided the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans such Incremental Revolving Facility shall be no earlier than the Term Loan Maturity Date and final maturity date of the Initial Revolving Credit Facility, (ii) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the weighted average life to final maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity date of the Closing Date Term Loans, Initial Revolving Credit Facility and provided, further, (iii) any Incremental Revolving Facility may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro basis) in any reduction or termination as compared to earlier maturing Revolving Credit Commitments or (y) increasing any Class of Revolving Credit Commitments (the “Incremental Revolving Credit Commitments”) with the same terms as such existing Class of Revolving Credit Commitments (it being understood that, if required to consummate an Incremental Revolving Facility, the Initial Yield pricing, interest rate margins, rate floors and undrawn fees on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect Revolving Credit Facility being increased may be increased for Term Loans that are Eurodollar Loans plus (B) one-quarter all Revolving Credit Lenders of the amount of such Revolving Credit Facility being increased, but additional upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically or similar fees may be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable payable to the Lenders making participating in the Incremental Revolving Credit Commitments without any requirement to pay such Other amounts to any existing Revolving Credit Lenders).
(d) The Borrower may invite any Lender or any additional Eligible Assignees to become Term LoansLenders or Revolving Credit Lenders, as applicable, pursuant to a commitment increase and joinder agreement (each, an “Incremental Joinder”). No Lender will be obligated to provide all or any portion of any Incremental Facility and the determination to provide such commitment shall be within the sole and absolute discretion of such Lender. Any failure by a Lender to respond to any such invitation shall not be deemed an acceptance or agreement to provide such Incremental Facility.
(e) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, the existing Lenders Administrative Agent and the Borrower shall be entitled to determine the benefit effective date (the “Incremental Effective Date”) and the final allocations of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption AgreementCommitments. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Borrower and the lenders providing such Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each Facility of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence final allocation thereof and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect Effective Date. As a condition precedent to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriateaddition, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromsuch increase, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein in Article 5 and in the other Loan Documents shall be are true and correct in all material respects (except for those representations that any representation and warranties warranty that are conditioned by is qualified as to “materiality” or “material adverse effect”, which Material Adverse Effect” shall be true and correct in all respectsrespects as so qualified) on and as of such date to the same extent as though made on and as of that dateIncremental Effective Date, except to the extent 103
(f) On each Incremental Effective Date, (i) each Lender or Eligible Assignee which is providing an Incremental Term Loan Class (A) shall become a “Term Lender” for all purposes of this Agreement and the other Loan Documents, and (B) shall make an Incremental Term Loan to the Borrower or the applicable Subsidiary Guarantor in a principal amount equal to such representations additional Term Commitment, and warranties specifically relate such Incremental Term Loan shall be deemed a “Term Loan” for all purposes of this Agreement and the other Loan Documents and (ii) each Lender or Eligible Assignee which is providing an Incremental Revolving Credit Commitment shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents, with a Revolving Credit Commitment of the applicable Class.
(g) The interest rate applicable to any Incremental Term Loans will be determined by the Borrower and the lenders providing such Incremental Term Loans; provided that (i) in the case of any such Incremental Term Loans denominated in Dollars that are secured by the Collateral on a pari passu basis with the Initial Term Loans in right of payment and with respect to security (other than customary bridge loans) with a final maturity date that is less than 24 months after the Initial Term Loan Maturity Date, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the Initial Term Loans unless the Applicable Margin (and/or, as provided in the proviso below, the Base Rate floor or Term SOFR floor) with respect to the Initial Term Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum (it being agreed that, the relative rate differentials in any pricing grid specified in the Applicable Margin shall continue to be maintained), provided that, unless otherwise agreed by the Borrower in its sole discretion, that any increase in All-In- Rate to any Initial Term Loan due to the application or imposition of an 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 Initial Term Loan and (ii) in the case of any such Incremental Term Loans denominated in Dollars that are secured by the Collateral on a pari passu basis with the 2022 Incremental Term B-2 Loans in right of payment and with respect to security (other than customary bridge loans) with a final maturity date that is less than 24 months after the 2022 Incremental Term B-2 Loan Maturity Date, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the 2022 Incremental Term B-2 Loans unless the Applicable Margin (and/or, as provided in the proviso below, the Base Rate floor or Term SOFR floor) with respect to the 2022 Incremental Term B-2 Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum (it being agreed that, the relative rate differentials in any pricing grid specified in the Applicable Margin shall continue to be maintained), provided that, unless otherwise agreed by the Borrower in its sole discretion, that any increase in All-In-Rate to any 2022 Incremental Term B-2 Loan due to the application or imposition of an 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 2022 Incremental Term B-2 Loan.
(h) Any Incremental Facility, if secured, may be secured only by the Collateral (provided that, in the case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the applicable funds and related assets held in Escrow (and the proceeds thereof) until the time of the release from Escrow of such funds (and may not be secured by any other assets prior to such release)) and rank pari passu or junior with respect to security with the Facilities (and if secured, subject to an earlier dateAcceptable Intercreditor Agreement (which may be effective (or entered into) only immediately after such release from Escrow referred to herein)) and, in if guaranteed, will not be guaranteed by an entity which case such representations is not (or does not become) a Loan Party. 104
(i) Except as otherwise specified above, the other terms of any Incremental Facility (including with respect to pricing, interest rate margins, rate floors, discounts, fees, premiums and warranties shall have been true prepayment or redemption terms and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”provisions), which shall be true on terms and correct in all respects) on pursuant to documentation to be determined between the Borrower and as the lenders providing such Incremental Facility (and for the avoidance of such earlier datedoubt, no consent of the Administrative Agent shall be required except to the extent affecting the rights and duties of, or any fees or other amounts payable to, the Administrative Agent); provided that, notwithstanding anything to at the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness election of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any more restrictive covenant is added for the benefit of any Incremental Term Loans are not Other Term Loans, Facility (except to the scheduled amortization payments set forth in Section 2.12(b) required to be made extent only applicable after the making latest maturity date of the Facilities), such covenant may also be added for the benefit of all of the Facilities (or, in the case of a financial maintenance covenant, solely for the benefit of the Initial Revolving Credit Facility or other Facility that benefits from a financial maintenance covenant at such time); it being understood and agreed that no consent of the Administrative Agent and/or any Lender shall be required in connection with any amendment adding such covenant or implementing such Incremental Term Loans Facility. The Borrower shall provide the Administrative Agent prompt written notice of any amendment to effect an Incremental Facility pursuant to this Section 2.16 and the Administrative Agent hereby agrees to (and is directed by each Lender to) acknowledge such amendment as promptly as practicable following such written notice; it being acknowledged and agreed by each Lender that the Administrative Agent, in its capacity as such, shall have no liability with respect to such acknowledgment and each Lender hereby irrevocably waives to the fullest extent permitted by Law any claims with respect to such acknowledgment; provided that, failure to obtain such acknowledgment shall in no way affect the effectiveness of any amendment entered into to effectuate such amendment in accordance with this Section 2.16.
(j) The proceeds of any Incremental Facility may be ratably increased used by the aggregate principal amount Borrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of such Incremental Term Loanspermitted acquisitions and other Investments and any other use not prohibited by this Agreement.
Appears in 1 contract
Increase in Commitments. (a) The Borrower mayProvided there exists no Default, by written upon notice from the Company, on behalf of the Borrowers, to the Administrative Agent at any (which shall promptly notify the Lenders), the Company, on behalf of the Borrowers, may from time after to time, request an increase in the Closing Date and prior Aggregate Commitments by an aggregate amount (for all such requests) not exceeding $50,000,000 to be applied pro rata as an increase to the Aggregate Revolving Commitments and as an increase to the Existing Term Loan Maturity DateCommitments, request on one or more occasions, up to three in based upon the aggregate, Incremental relative proportions of (x) the Aggregate Revolving Commitments and (y) the sum of the unfunded portion of the Existing Term Loan Commitments from one or more Incremental and the outstanding Existing Term LendersLoan (the “Increase Option”), (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered with the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this portion allocated under clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not y) to be unreasonably withheld, conditioned or delayed). Such notice shall set forth funded in full on the Increase Effective Date; provided that (i) the maximum amount of the Incremental Term Loan Aggregate Commitments being requested after giving effect to any such increase may not exceed $750,000,000, (which ii) any such request for an increase shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000)5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iiiii) the date on which Borrowers may make a maximum of three (3) such Incremental Term Loan Commitments are requested requests and (iv) the Maximum Senior Credit Facilities to become effective (which Collateral Value Ratio shall not be less greater than 15 days nor more than 60 days 50.00% after giving effect to any such increase, as evidenced by an updated pro forma Collateral Value Report delivered by the date of such notice, unless otherwise agreed Company to by the Administrative Agent. To achieve the full amount of a requested increase, the Administrative Agent, with the consent of the Borrowers (which consent shall not be unreasonably withheld) may solicit increased commitments from existing Lenders and (iii) whether also invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.16 unless it specifically consents to such Incremental Term Loan Commitments are increase in writing and no additional Eligible Assignee shall become a Lender unless its Commitment is at least $5,000,000. Any Lender or Eligible Assignee agreeing to be Term Commitments increase its Commitment or commitments provide a new Commitment pursuant to make term loans with terms different from this Section 2.16 shall, in connection therewith, deliver to the Term Loans (“Other Term Loans”)Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) The Borrower may seek Incremental Term Loan If the Aggregate Commitments from existing Lenders (each of which may be entitled to agree or decline to participate are increased in its sole discretion if so offered the opportunity to do so) and other Persons additional banksaccordance with this Section 2.16, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent Company, on behalf of the Borrowers, shall reasonably specify to evidence determine the Incremental Term Loan Commitment effective date (the “Increase Effective Date”) and the final allocation of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreementincrease. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each Company, on behalf of the parties Borrowers, and the Lenders of the final allocation of such increase and the Increase Effective Date and Schedule 2.01 hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be deemed amended to the extent (but only reflect such increase and final allocation. As a condition precedent to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriateincrease, in the reasonable opinion of addition to any deliveries pursuant to subsection (a) above, each Borrower shall deliver to the Administrative Agent each of the following in form and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions substance satisfactory to the contrary Administrative Agent: (1) a certificate dated as of the Increase Effective Date (in Section 11.12. Any sufficient copies for each Lender) signed by a Responsible Officer of such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless Borrower (i) on certifying and attaching the date of resolutions adopted by such effectivenessBorrower approving or consenting to such increase, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinionscertifying that, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromsuch increase, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein of the Borrowers and in the each other Loan Documents Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”if the applicable representation and warranty is already subject to a materiality standard, which shall be true and correct in all respects) , on and as of such the date to of the same extent as though made on and as of that dateIncrease Effective Date, except to the extent that such representations and warranties specifically relate refer to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which they shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in date and except that for purposes of this Section 2.15 or in any other provision of any Loan Document2.16, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties contained in Section 5.05 shall be limited deemed to (x) refer to the representation and warranty that the Loans incurred most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from such Borrower pursuant to which each such Borrower ratifies this Agreement are senior Indebtedness and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the Borrower other Loan Documents; (3) if the increase is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (y4) such additional Timberland Mortgages as may be necessary to comply with Section 6.14 hereof. The Borrowers shall prepay any Committed Loans outstanding on the Specified Representations, which shall be true Increase Effective Date (and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of pay any Incremental Term Loans by the date and time additional amounts required hereunder with respect pursuant to Section 3.05) to the applicable Type of Loanextent necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section 2.16.
(fc) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take This Section shall supersede any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included provisions in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, 10.01 to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanscontrary.
Appears in 1 contract
Sources: Credit Agreement (Longview Fibre Co)
Increase in Commitments. (a) The 2.7.1. Borrower may, may by written notice to the Administrative Agent at any time after the Closing Date and prior (each, an “Increase Notice”), seek an increase to the existing (i) Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, Commitment (each an “Incremental Term Loan Commitments from one or more Commitment”, and each Term Loan provided thereunder in accordance with the terms and conditions of this Section 2.7.1, an “Incremental Term Lenders, (which may Loan”) or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) Revolving Commitment (each an unlimited amount“Incremental Revolving Loan Commitment”, and each additional Revolving Loan provided thereunder in accordance with the terms of conditions of this Section 2.7.1, an “Incremental Revolving Loan”) by an amount not in excess of $35,000,000 in the aggregate (of which not more than $5,000,000 may consist of increases to the Revolving Loan Commitment), so long as, in on a pro forma basis on the case date of this clause (ii)incurrence, immediately after giving pro forma effect to the Borrowing incurrence of any such Incremental Term Loan and the application of proceeds therefrom Commitment (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds full amount of any such concurrently established Incremental Term Loans, Revolving Commitment is drawn) and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction transactions consummated in connection therewith), (x) the Leverage Total Debt to EBITDA Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunderfor the most recently completed fiscal quarter with respect to which the Administrative Agent has received financial statements pursuant to Section 10.1.2, shall be subject equal to or less than the approval lesser of (1)(A) 4.25 to 1.00 with respect to any Incremental Loan the proceeds of which will be used to fund a Permitted Dividend or (B) 5.25 with respect to any Incremental Loan the proceeds of which will be used for a purpose permitted by Section 2.7.2(iv) other than Permitted Dividends and (2) the applicable compliance level for the most recently ended Fiscal Quarter less 0.25 and (y) with respect to any Incremental Loan the proceeds of which will be used to fund a Permitted Dividend, EBITDA shall be at least $32,000,000 calculated for the trailing twelve (12)-month period ending on the last day of the most recently completed fiscal quarter with respect to which the Administrative Agent in its discretion (not has received financial statements pursuant to be unreasonably withheld, conditioned or delayed)Section 10.1.2. Such notice Administrative Agent shall set forth promptly deliver a copy of such Increase Notice to each Lender. Each such Increase Notice shall specify (i) the amount of the requested Incremental Revolving Loan Commitment or Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 Commitment, as applicable, and a minimum amount of $5,000,000), (ii) the date on which such the Incremental Term Loan Commitments are requested Commitment is intended to become be effective (each, an “Increase Effective Date”), which shall be a date not be less than 15 days nor more than 60 days 10 Business Days after the date of on which such notice, unless otherwise Increase Notice is delivered to Administrative Agent (or such shorter time period as agreed to in writing by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek 2.7.2. Such Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless as of such Increase Effective Date; so long as the following terms are satisfied:
(i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both both immediately before and immediately after giving effect to any such Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would continuing;
(ii) no Event of Default shall exist after giving effect thereto and as of the date of funding of such Incremental Loan;
(Biii) as certified by an authorized officer of the Borrower, all representations and warranties contained herein of Borrower and the other Loan Parties set forth in this Agreement and the other Loan Documents shall be are true and correct in all material respects (except for those representations and warranties that are conditioned by with the same effect as if then made, without duplication of any “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, Material Adverse Effect” qualifiers (except to the extent such representations and warranties specifically expressly relate to an a specific earlier date, in which case such representations and warranties shall have been be true and correct in all material respects (except for those representations and warranties that are conditioned by without duplication of any “materiality” or “material adverse effect”, which shall be true and correct in all respectsMaterial Adverse Effect” qualifiers) on and as of such earlier date; provided that, notwithstanding anything to ) as of the contrary in this Section 2.15 or in any other provision of any Loan Document, if Increase Effective Date;
(iv) the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by used solely to fund Capital Expenditures, Investments, Permitted Acquisitions and Permitted Dividends, in each case to the aggregate principal amount extent permitted hereunder and the proceeds of such Incremental Revolving Loans shall be used for working capital and general corporate needs;
(v) the initial “yield” (including any original issue discount or similar yield-related discounts, deductions or payments, but excluding any customary arrangement, structuring, underwriting, amendment or similar fees in connection therewith that are not paid to all of the Lenders of such Incremental Loan Commitment) of the Incremental Loan Commitments shall be no greater than one-half percent (0.50%) per annum higher than the combined “yield” for the Term Loans (including any prior Incremental Term Loans), respectively, provided however, the Borrowers may request an increase of the “yield” on the Term Loans in order to comply with this clause (v), which Administrative Agent shall approve;
(vi) the maturity date of the Incremental Term Loans shall be as set forth in the Incremental Term Loan Joinder Agreement; provided that, such date shall not be earlier than the Term Loan Maturity Date;
(vii) the weighted average life to maturity of any Incremental Term Loan shall be equal to the weighted average life to maturity of the Term Loans (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of Term Loans prior to such date of determination);
(viii) the Incremental Term Loans shall rank pari passu in right of payment and rank pari passu in right of security with the Obligations;
(ix) the terms and provisions of additional Revolving Loans made under any Incremental Revolving Commitment shall be identical to those of the existing Revolving Loans;
(x) shall not be secured by property other than the Collateral or be incurred or guaranteed by any Person other than a Loan Party; and
(xi) Administrative Agent shall have provided its prior written consent with respect to any Incremental Loan Commitment, to be granted or denied in the Administrative Agent’s sole discretion.
2.7.3. The Borrower agrees that no Lender shall have any obligation to provide an Incremental Loan Commitment. No Incremental Loan Commitment shall become effective until all existing and/or new Lenders committing to such Incremental Loan Commitment have delivered to Administrative Agent a writing in form reasonably satisfactory to Administrative Agent pursuant to which such existing Lenders and/or new Lenders state the amount of their Incremental Term Loan Commitment, or Incremental Revolving Loan Commitment, as applicable, and agree to assume and accept the obligations and rights of a Lender hereunder; provided that no new Lenders may become Lenders hereunder or commit to provide any of the Incremental Loan Commitment except with the prior written consent of the Administrative Agent, to be granted or denied in the Administrative Agent’s sole discretion. Upon the Increase Effective Date, pursuant to this Section 2.7, Annex A shall be deemed amended and replaced with a new Annex A reflecting the new Commitments hereunder and, to the extent the pricing on the Term Loans is increased pursuant to this Section 2.7, the definition of Applicable Margin and any other relevant definitions shall be deemed amended to reflect such pricing increase.
2.7.4. At least five (5) Business Days prior to the applicable Increase Effective Date, the Borrower Representative shall provide Administrative Agent with a written offer to the Lenders (which offer Administrative Agent shall promptly deliver to the Lenders) to commit to the applicable Incremental Term Loan Commitment, (i) first on a pro rata basis to Lenders, which each Lender may in its sole and absolute discretion accept or decline (it being understood that any Lender not affirmatively committing in writing to its pro rata portion, within five (5) Business Days after the delivery thereof, shall be deemed to have declined) and (ii) second, if any Lender has declined its pro rata share or any part thereof, such remaining amounts on a non-pro rata basis to the Lenders accepting their pro rata share of such requested Incremental Term Loan Commitment. Within five (5) Business Days of Administrative Agent’s receipt of such offer from Borrower, Administrative Agent shall deliver to Borrower written notice from any Lenders committing to the requested Incremental Loan Commitment pursuant to which such Lenders shall state the amount of their Incremental Term Loan Commitment or Incremental Revolving Loan Commitment, as applicable. If following the application of the two immediately preceding sentences, some or all of the Lenders do not agree to fund the entire requested Incremental Loan Commitment, Borrower may propose new lender(s), which new lender(s) must be a Person which would be an eligible assignee pursuant to Section 15.6 hereof, to which Borrower proposes to offer the remaining requested Incremental Term Loan Commitment and request Administrative Agent’s consent (within three (3) Business Days following receipt of such request, Administrative Agent shall provide written notice to Borrower indicating that such proposed new lender(s) is or is not acceptable to Administrative Agent (which consent shall be provided or withheld at the sole discretion of the Administrative Agent).
2.7.5. Other than with respect to pricing, margins, interest rate floors, fees and original issue discount, amortization and maturity date (which may be later but not before), the terms and provisions of any Incremental Term Loans shall be identical to the Term Loans existing immediately prior to giving effect to any such Incremental Term Loan; provided that representations, warranties, covenants and events of default with respect to such Incremental Term Loan may be inconsistent with the Term Loans (including all prior Incremental Term Loans) so long as, if any such representation, warranty, covenant or event of default is in addition to, or more restrictive than, those applicable to the Term Loans (including all prior Incremental Term Loans), either (x) such Term Loans shall receive the benefit of any such additional or more restrictive representation, warranty, covenant or event of default or (y) such representations, warranties, covenants or events of default shall be effective after the maturity date applicable to the Term Loans (including all prior Incremental Term Loans).
2.7.6. Unless otherwise specifically provided herein, all references in the Loan Documents (a) to Term Loans shall be deemed, unless the context otherwise requires, to include references to Incremental Term Loans and (b) to Revolving Loans shall be deemed, unless the context otherwise requires, to include references to any additional Revolving Loans provided under any Incremental Revolving Commitment.
2.7.7. Any amendments to this Agreement or any other Loan Document to reflect the incurrence of and terms and conditions of any Incremental Loans in accordance with the terms and conditions hereof, shall require the approval of Administrative Agent and participating Lenders but shall not require the approval any Lenders not providing any such Incremental Revolving Loans or Incremental Term Loans, as applicable.
2.7.8. The Incremental Loan Commitments and Incremental Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Collateral Documents.
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Increase in Commitments. (a) The Borrower may, from time to time on or prior to December 28, 2005 so long as no Default exists, by written notice means of a letter delivered to the Administrative Agent at any time after substantially in the Closing Date and prior to the Term Loan Maturity Dateform of EXHIBIT H, request on that the Aggregate Commitments be increased by up to $50,000,000 in the aggregate; PROVIDED that any such increase in the Aggregate Commitment shall be in an integral multiple of $5,000,000.
(b) Any increase in the Aggregate Commitments may be effected by (i) increasing the Commitment of one or more occasionsLenders that have agreed to such increase and/or (ii) subject to CLAUSE (c), up to three in the aggregate, Incremental Term Loan Commitments from adding one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment commercial banks or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject Persons acceptable to the approval of the Administrative Agent as a party hereto (each an "ADDITIONAL LENDER") with a Commitment in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the an amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after $5,000,000) agreed to by any such Additional Lender.
(c) Any increase in the date of Aggregate Commitments pursuant to this SECTION 2.14 shall be effective three Business Days (or such notice, unless otherwise other period agreed to by the Administrative Agent, the Borrower and, as applicable, each Lender that has agreed to increase its Commitment and each Additional Lender) after the date on which the Administrative Agent has received and accepted the applicable increase letter in the form of ANNEX 1 to EXHIBIT H.
(iiid) whether such Incremental Term Loan Commitments are to No Additional Lender shall be Term Commitments or commitments to make term loans with terms different from added as a party hereto without the Term Loans written consent of the Administrative Agent, the L/C Issuer and the Swing Line Lender (“Other Term Loans”which consents shall not be unreasonably withheld).
(be) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify the Borrower and the Lenders of any increase in the amount of the Aggregate Commitments pursuant to this SECTION 2.14 and of the Commitment and Pro Rata Share of each Lender as after giving effect thereto. The Borrower acknowledges that, in order to the effectiveness of maintain Revolving Loans in accordance with each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each Lender's Pro Rata Share, a reallocation of the parties hereto hereby agrees that, upon the effectiveness Commitments as a result of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, a non-pro-rata increase in the reasonable opinion Aggregate Commitments may require prepayment or conversion of the Administrative Agent and the Borrower, to effectuate the provisions all or portions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term certain Revolving Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 increase (and any such prepayment or conversion shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date subject to the same extent as though made on and as provisions of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of LoanSECTION 3.05).
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take This Section shall supersede any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included provision in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, SECTION 10.01 to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanscontrary.
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Increase in Commitments. (a) The So long as (x) no Default exists or would exist after giving effect to the making of the Incremental Term Loans or Incremental Revolving Loans referred to below and the use of proceeds therefrom and (y) after giving effect to the making of the Incremental Term Loans or Incremental Revolving Loans referred to below and the use of proceeds therefrom, Borrower maywould be in compliance with the Financial Covenants on a pro forma basis on such date and for the most recent fiscal quarter for which financial statements have been delivered in accordance with Section 5.01 after giving effect on a pro forma basis to any related adjustment events, by including any acquisitions or dispositions after the beginning of the relevant calculation period but prior to or simultaneous with the borrowing of such Incremental Term Loans or Incremental Revolving Loans, then upon written notice to the Administrative Agent at any Agent, Borrower may from time to time (but only after the Closing Date completion of the syndication of the Commitments and prior to Loans (within the Term Loan Maturity Datemeaning of the Fee Letter) request additional term loans (the "INCREMENTAL TERM LOANS" and the related commitments, request on one or more occasionsthe "INCREMENTAL TERM LOAN COMMITMENTS") and/or additional revolving loans (the "INCREMENTAL REVOLVING LOANS" and the related commitments, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)"INCREMENTAL REVOLVING LOAN COMMITMENTS") in an aggregate principal amount not to exceed the sum $75,000,000; provided that any such increase shall be in an aggregate amount of (i) $50,000,000 plus (ii) an unlimited amount, so long as, 25,000,000 or any whole multiple of $1,000,000 in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00excess thereof; provided, further, that each Incremental Term Lender, if not already any existing Lender approached to provide all or a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms portion of the Incremental Term Loans and related commitments or Incremental Revolving Loans and related commitments may elect or decline, in its sole discretion, to be made thereunder; providedprovide such loans and commitments. To the extent the existing Lenders decline to agree to provide or do not affirmatively agree to provide within 10 Business Days of such request any portion of an Incremental Term Loan or an Incremental Revolving Loan and the related commitments, that, without the prior written consent Borrower may seek such Incremental Term Loan or Incremental Revolving Loan from any bank or financial institution that would qualify as an Eligible Assignee. The Incremental Term Loans (A) shall rank pari passu in right of payment and right of security in respect of the Required LendersCollateral with the Term Loans and (B) other than amortization, pricing and maturity date, shall have the same terms as Term Loans existing immediately prior to the effectiveness of the amendment creating such Incremental Term Loans; provided that (ix) if the final maturity date of interest rate spreads relating to such new Incremental Term Loans exceed the Applicable Rate at any Other pricing level for the Term Loans (including any upfront fees or original issue discount payable to the Lenders providing such Incremental Term Loans) by more than 25 basis points, then the Applicable Rate for the Term Loans shall be no adjusted to be equal to such interest rate spreads, (y) the Incremental Term Loans shall not have a final maturity date earlier than the Term Loan Maturity Date Date, and (iiz) the weighted average life to maturity of any Other Incremental Term Loans shall be no not have a Weighted Average Life to Maturity that is shorter than the then-remaining weighted average life Weighted Average Life to maturity Maturity of the Closing Date Term Loans. Any Term Lender or additional bank or financial institution electing to make available an Incremental Term Loan Commitment (an "INCREMENTAL TERM LENDER") shall become a Lender or make its Incremental Term Loan Commitment available, as the case may be, under this Agreement, pursuant to an amendment (an "INCREMENTAL FACILITY AMENDMENT") to this Agreement giving effect to the modifications permitted by this Section 2.21 and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Incremental Term Lender and the Administrative Agent, and providedto any other documentation, further, that, if in each case on terms and documentation satisfactory to the Initial Yield on such Other Term Administrative Agent and the Lead Arranger. The Incremental Revolving Loans exceeds by more than 0.50% the sum of (A) the margin then shall rank pari passu in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter right of the amount payment and right of such upfront fee paid on the Closing Date security in respect of the Term Loans (Collateral with the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Revolving Loans and (B) four. The other than pricing and maturity date, shall have the same terms as Revolving Loans existing immediately prior to the effectiveness of the amendment creating such Incremental Term Revolving Loans; provided that (x) if the interest rate spreads relating to such new Incremental Revolving Loans exceed the Applicable Rate at any pricing level for the Revolving Loans (including any upfront fees or original issue discount payable to the Lenders providing such Incremental Revolving Loans) by more than 25 basis points, then the Applicable Rate and unused commitment fees for the Revolving Loans shall be adjusted to be equal to such interest rate spreads, and (y) the Incremental Revolving Loans shall not have a final maturity date earlier than the applicable maturity date of the Revolving Loans and the Incremental Term Loan Assumption Agreement commitments thereunder may not be terminated prior to the extent not consistent with date that all Revolving Credit Commitments hereunder are terminated. Any Revolving Lender or additional bank or financial institution electing to make available an Incremental Revolving Commitment (an "INCREMENTAL REVOLVING LENDER") shall become a Lender or make its Incremental Revolving Commitment available, as the terms applicable case may be, under this Agreement, pursuant to an Incremental Facility Amendment to this Agreement giving effect to the Term Loans hereunder shall otherwise be reasonably modifications permitted by this Section 2.21 and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Incremental Revolving Lender and the Administrative Agent, and to any other documentation, in each case on terms and documentation satisfactory to the Administrative Agent; and, to Agent and the Lead Arranger. To the extent that such an Incremental Term Loan Assumption Agreement contains any covenantsFacility Amendment is entered into to increase the Revolving Credit Commitments with respect to an existing Class of Revolving Credit Commitments, events then each of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Revolving Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events Class having a Revolving Credit Commitment of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and Class prior to such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent Facility Amendment (the "PRE-INCREASE REVOLVING LENDERS OF SUCH CLASS" and the effective date of such Incremental Facility Amendment, the "INCREASE EFFECTIVE DATE") shall promptly notify assign on the Increase Effective Date, and such Incremental Revolving Lenders of such Class shall purchase from each Pre-Increase Revolving Lender of such Class, at the principal amount thereof, such interests in the Revolving Loans of such Class and, if such Class is the Multicurrency Revolving Credit Commitments, participation interests in LC Exposure and Swingline Loans outstanding on such Increase Effective Date as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees shall be necessary in order that, upon the effectiveness after giving effect to all such assignments and purchases, such Revolving Loans of any such Class and participation interests in LC Exposure and Swingline Loans, if applicable, will be held by Pre-Increase Revolving Lenders of such Class and Incremental Term Loan Assumption Agreement or Revolving Lenders of such other joinder agreement or amendmentClass ratably in accordance with their Revolving Commitments of such Class after giving effect to such increased Revolving Commitments of such Class. An Incremental Facility Amendment may, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the any other Lenders hereto Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effectuate effect the provisions of this Section 2.15, and, for the avoidance of doubt, 2.21.
(b) If any Incremental Term Loan Commitments or Incremental Revolving Loan Commitments are made in accordance with this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by 2.21, the Administrative Agent with and Borrower shall determine the Borrower’s consent effective date (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of paymenteach, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waivedan "INCREMENTAL FACILITY EFFECTIVE DATE") and the final allocation of such increase. The Administrative Agent shall have received promptly notify Borrower and the Lenders of the final allocation of such increase and the Incremental Facility Effective Date. As a condition precedent to such increase, Borrower shall deliver to the Administrative Agent a certificate to that effect of Borrower dated such date and executed as of the Incremental Facility Effective Date signed by a Financial Officer of Borrower (i) certifying and attaching (A) the Borrower, resolutions adopted by Borrower approving or consenting to such increase and (B) a certificate demonstrating pro forma compliance with the Financial Covenants as set forth in Section 2.21(a) and (ii) the Administrative Agent shall have received legal opinionscertifying that, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromsuch increase, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein set forth in Article III and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date the Incremental Facility Effective Date (unless expressly stated to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that), notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if and (B) no Default shall have occurred and be continuing.
(c) Borrower shall use the proceeds of any Incremental Term Loan are being used Loans and Incremental Revolving Loans for general corporate purposes (including to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of LoanPermitted Acquisitions).
(fd) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take This Section 2.21 shall supersede any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included provisions in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, 9.08 to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanscontrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, by written notice to the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, elect to (A) increase the commitments with respect to the existing Revolving Commitments (any such increase, the “Incremental Term Loan Commitments Revolving Commitments”) from one or more Incremental Term Lenders, Revolving Lenders (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) and/or (B) incur Incremental Term Loan Commitments from one or more Incremental Term Lenders (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) (the Incremental Term Loan Commitments, together with the Incremental Revolving Commitments, the “Incremental Commitments”), in an aggregate principal amount of all Incremental Commitments not to exceed the sum of (i) $50,000,000 125,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to such Incremental Revolving Commitments or the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Revolving Commitments and all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Revolving Commitments or Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Senior Secured Leverage Ratio shall not exceed 2.50:1.003.25:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Revolving Commitments or Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), ) and (ii) the date on which such Incremental Revolving Commitments or Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, (x) the terms and provisions of any Incremental Revolving Commitments shall be identical to the existing Revolving Commitments and (y) with respect to Incremental Term Loans, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Incremental Term Loans shall be no earlier than the Term Loan Maturity Date or, if a previous tranche of Incremental Term Loans was issued (a “Previous Incremental Term Loan Tranche”), then no earlier than the latest maturity date of any Previous Incremental Term Loan Tranche and (ii) the weighted average life to maturity of any Other Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date any such Previous Incremental Term LoansLoan Tranche, and provided, further, that, if the Initial Yield on such Other Incremental Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Term SOFR Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date any Previous Incremental Term Loan Tranche in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Incremental Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Term SOFR Rate on such Other Incremental Term Loans (which shall be increased by the amount any “LIBOR floorFloor” applicable to such Other Incremental Term Loans on the date such Other Incremental Term Loans are made exceeds the Adjusted Eurodollar Term SOFR Rate) plus (y) if the Lenders making such Other Incremental Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Incremental Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Incremental Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Incremental Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Commitment and/or Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Revolving Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Revolving Commitment or Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, Borrower and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Revolving Commitments or Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Term SOFR Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other a Previous Incremental Term LoansLoan Tranche, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, by written Upon notice to the Administrative Agent Agent, at any time after the Closing Date and prior to the Term Loan Maturity Date, request each Borrower may on one or more occasions, up to three (3) different occasions (in the aggregate, Incremental aggregate for both Borrowers) request Additional Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of Additional Revolving Credit Commitments; provided that (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith)such addition, the Leverage Ratio aggregate amount of Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed 2.50:1.00$250,000,000; provided, provided further that each Incremental Term Lender, if not already a Lender hereunder, $100,000,000 of such aggregate amount shall only be subject to the approval of the Administrative Agent in its discretion (not permitted to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental incurred as a Term Loan Commitments being requested (which shall Facility to be in minimum increments of $1,000,000 and a minimum amount of $5,000,000)used solely to finance Permitted Acquisitions, (ii) the date on which any such Incremental Term Loan Commitments are requested to become effective addition shall be in an aggregate amount of $50,000,000 or any whole multiple of $1,000,000 in excess thereof (which shall not provided that such amount may be less than 15 days nor more than 60 days after $50,000,000 if such amount represents all remaining availability under the date aggregate limit in respect of such noticeAdditional Term Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (iA) the final maturity date of any Other Additional Term Loans shall be no earlier than the Term Loan Maturity Date for the Term Loans and (iiB) the weighted final maturity date of any Additional Revolving Credit Loans shall be no earlier than the Maturity Date for the Revolving Credit Loans, (iv) the average life to maturity of any Other the Additional Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, (v) if the Initial Yield on such Other initial yield of any Additional Term Loans exceeds or any Additional Revolving Credit Loans (as determined by more than 0.50% the Administrative Agent to be equal (x) in the case of Additional Term Loans, to the sum of (A) the margin Applicable Rate with respect to the Additional Term Loans and (B) if the Additional Term Loans are initially made at a discount or the Lenders making the same receive a fee from the applicable Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Additional Term Loans, being referred to herein as “OID”), the amount of OID divided by the lesser of (1) the average life to maturity of such Additional Term Loans and (2) four and (y) in the case of Additional Revolving Credit Loans, to the Applicable Rate with respect to the Additional Revolving Credit Loans) exceeds the Applicable Rate then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of or Revolving Credit Loans, as the amount of such upfront fee paid on the Closing Date in respect of the Term Loans case may be, by more than 50 basis points (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the each Applicable Loan Margin then in effect Rate for each such affected Type of adversely effected Term Loans Loan or Revolving Credit Commitment shall automatically be increased by the Yield Differential, effective upon the making of the Other Additional Term Loans. As used in Loans or the prior sentence, “Initial Yield” shallproviding of the Additional Revolving Credit Commitments, as determined by the case may be.
(b) If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent, be equal to Agent and the sum of applicable Borrower shall determine the effective date (xthe “Additional Commitments Effective Date”) and the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the final amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreementaddition. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement applicable Borrower and the other Loan Documents as Lenders (which may be necessary or appropriate, in the reasonable opinion of include Persons reasonably acceptable to the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions applicable Borrower that were not Lenders prior to the contrary in Section 11.12Additional Commitments Effective Date) of the final amount of such addition and the Additional Commitments Effective Date. Any As a condition precedent to such deemed amendment may be memorialized in writing by addition, the BV Borrower shall deliver to the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect of the BV Borrower dated such date and executed as of the Additional Commitments Effective Date signed by a Financial Responsible Officer of the BorrowerBV Borrower certifying that, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromsuch increase, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (Bi) the representations and warranties contained herein in Article 5 and in the other Loan Documents shall be are true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that dateAdditional Commitments Effective Date, except to the extent that such representations and warranties specifically relate refer to an earlier date, in which case such representations and warranties they shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything and except that for purposes of this Section 2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the contrary most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition, (iii) the BV Borrower and its Restricted Subsidiaries shall be in Pro Forma Compliance with each of the covenants set forth in Section 7.11 as of (A) the Additional Commitments Effective Date and (B) the last day of the most recently ended determination period after giving Pro Forma Effect to such Additional Term Commitment or Additional Revolving Credit Commitment, as applicable, the making of Additional Term Loans or Additional Revolving Credit Loans, as the case may be, in respect thereof and any Investment or Disposition to be consummated in connection therewith. On each Additional Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Term Commitment or Additional Revolving Credit Commitment (i) shall become a “Term Lender” or “Revolving Credit Lender”, as applicable, for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term Commitment, shall make an Additional Term Loan to the applicable Borrower in a principal amount equal to such Additional Term Commitment, and such Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Loan Documents.
(c) Any other terms of and documentation entered into in respect of any Additional Term Loans made or any Additional Revolving Credit Commitments provided, in each case pursuant to this Section 2.15 2.14, to the extent not consistent with the Term Loans or the Revolving Credit Commitments, as the case may be, shall be reasonably satisfactory to the Administrative Agent. Any Additional Term Loans or Additional Revolving Credit Commitments, as applicable, made or provided pursuant to this Section 2.14 shall be evidenced by one or more entries in the Register maintained by the Administrative Agent in accordance with the provisions set forth in Section 2.11.
(d) This Section 2.14 shall supersede any provisions in Section 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall Documents may be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans amended by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In additionLoan Parties, if necessary, to provide for terms applicable to each Additional Term Commitment and/or Additional Revolving Credit Commitment, as the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loanscase may be.
Appears in 1 contract
Sources: Credit Agreement (Sensata Technologies Holland, B.V.)
Increase in Commitments. (a) The Borrower may, may by written notice to the Administrative Agent at elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any time after the Closing Date and prior existing Class of Term Loans or to the Term Loan Maturity Date, request on establish one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each new Classes of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth provided that:
(i) the aggregate amount of the Incremental Term Loan all Additional Commitments being requested shall not exceed $500,000,000;
(which ii) any such increase or any new Class shall be in minimum increments of $1,000,000 and a minimum an aggregate amount of $5,000,000), (ii) the date on which 10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such Incremental Term Loan Commitments are requested to become effective (which shall not amount may be less than 15 days nor more than 60 days after $10,000,000 if such amount represents all remaining availability under the date of such notice, unless otherwise agreed to by limit set forth in the Administrative Agent) and preceding clause (i);
(iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Additional Term Loans shall be no earlier than the Term Loan Latest Maturity Date and Date;
(iiiv) the weighted average life Additional Term Loans shall have a Weighted Average Life to maturity Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(v) the Applicable Rate with respect to any Other Additional Term Loans shall be no shorter determined by the Borrower and the lenders of the Additional Term Loans; provided that in the event that the Applicable Rate for any Additional Non-Institutional Term Loans is greater than the remaining weighted average life Applicable Rate for the Tranche A Term Loans by more than 50 basis points, then the Applicable Rate for the Tranche A Term Loans shall be increased to maturity of the Closing Date extent necessary so that the Applicable Rate for the Additional Non-Institutional Term Loans is not more than 50 basis points higher than the Applicable Rate for the Tranche A Term Loans, and ; provided, further, that, if in determining the Initial Yield on such Other Applicable Rate with respect to Additional Term Loans exceeds by more than 0.50% or the sum applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) the margin then in effect for Term Loans that are Eurodollar Loans plus original issue discount (B“OID”) one-quarter of the amount of such or upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans or similar fees (which shall be increased deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included, (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (C) the amount by which any Eurodollar Rate “LIBOR floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to such Other Outstanding Term Loans on shall be equated to an increase in the date such Other Applicable Rate for the Additional Term Loans are made exceeds the Adjusted Eurodollar Ratefor purposes of this clause (v);
(vi) plus no existing Lender shall be required to provide any Additional Commitments;
(yvii) if the Lenders making such Other Term Loans receive an upfront fee subject to clause (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiariesiv), the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) except during the Collateral Suspension Period (unless the Borrower shall have elected to terminate the Collateral Suspension Period), the Additional Term Loans hereunder shall otherwise be rank pari passu with or junior in right of payment and/or of security with the existing Loans, and if junior in right of payment and/or security, on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent; and
(ix) the Additional Term Loans may have optional prepayment terms (including call protection and prepayment premiums) and mandatory prepayment terms as may be agreed between the Borrower and the lenders of the Additional Term Loans so long as such Additional Term Loans do not participate on a greater than pro rata basis in any such mandatory prepayments as compared to Tranche A Term Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof), (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such Incremental Term Loan Assumption Agreement contains any covenantsrepresentations and warranties specifically refer to an earlier date, events in which case they shall have been true and correct in all material respects as of defaultsuch earlier date, representations or warranties or other rights or provisions and except that place greater restrictions on the Borrower or any for purposes of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loansthis Section 2.14(b), the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, warranties contained in Section 5.05(a) and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions Section 5.05(b) shall be deemed automatically incorporated by reference into this Agreementto refer to the most recent financial statements furnished pursuant to subsections (a) and (b), mutatis mutandisrespectively, as if fully of Section 6.01, (ii) no Default or Event of Default exists and (iii) the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth hereinin Section 7.11. On each Additional Commitments Effective Date with respect to any Additional Term Commitment, without each Person with an Additional Term Commitment shall make an Additional Term Loan to the Borrower in a principal amount equal to such Person’s Additional Term Commitment. The Borrower shall prepay any further action required Revolving Credit Loans outstanding on the part of Additional Commitments Effective Date with respect to any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended Section 3.05) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments. If there is a new Borrowing of Revolving Credit Commitments on such Additional Commitments Effective Date, the Revolving Credit Lenders after giving effect to such Additional Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(b).
(but only c) Any other terms of and documentation entered into in respect of any Additional Term Commitments shall be on terms and pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.14(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that to the extent) necessary to reflect the existence extent such other terms and terms documentation in respect of any Additional Non-Institutional Term Loans are not consistent with those of the Incremental Tranche A Term Loan Commitment Loans (except to the extent permitted by Section 2.14(a)(iii), (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory to the Administrative Agent.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate effect the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing2.14.
(e) Both immediately before and immediately after giving effect to This Section 2.14 shall supersede any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing provisions in Section 2.13 or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date Section 10.01 to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loancontrary.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (MSCI Inc.)
Increase in Commitments. (a) The Borrower maymay at any time or from time to time after the Effective Date, by written notice to the Administrative Agent at any time after (whereupon the Closing Date and prior Administrative Agent shall promptly deliver a copy to each of the Term Loan Maturity DateLenders), request on (x) one or more occasionsnew commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of Term Loans (collectively with any Term Loan Increase, up to three in the aggregate, “Incremental Term Loan Commitments from Loans”), or (y) one or more increases in the amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”, together with any Incremental Term LendersLoans, referred to herein as an “Incremental Facility”), provided that (i) at the time of each such request and upon the effectiveness of each Incremental Facility, (x) no Default or Event of Default has occurred and is continuing or would result therefrom (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, (A) no Event of Default shall be continuing at the time of execution of the applicable contract or agreement for such acquisition and (B) no Event of Default under Sections 7.01(a), (b), (h) or (i) shall be continuing at the time of making such acquisition)) and (y) the condition in Section 4.02(b) shall be satisfied (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, such representations shall be limited to the Specified Representations (as defined in the Existing Credit Agreement, which may or may not include shall be conformed as reasonably necessary for such acquisition to provide for certainty of funding in connection with such transaction) ), (ii) no Lender shall be obligated to provide an Incremental Facility as a result of any existing such request by the Borrower, and until such time, if any, as such Lender (each of which may be entitled to agree or decline to participate has agreed in its sole discretion to provide an Incremental Facility and executed and delivered to the Administrative Agent and the Borrower an Incremental Facility Agreement as provided in clause (c) of this Section 2.23, such Lender shall not be obligated to fund any Incremental Facility, (iii) any Lender may so provide an Incremental Facility without the consent of any other Lender, (iv) Incremental Facilities shall be denominated in dollars, (v) the Incremental Loan Commitment Requirements shall have been satisfied, and (vi) the provision of Incremental Facilities pursuant to this Section 2.23 on a given date pursuant to a particular Incremental Facility Agreement shall be in a minimum aggregate amount of $5,000,000 (provided that such amount may be less than $5,000,000 if so offered such amount represents all remaining availability under the opportunity limit set forth in the next sentence). Notwithstanding anything to do so)) in an the contrary herein, the aggregate principal amount of the Incremental Facilities shall not to exceed the sum of (the “Incremental Cap”): (i) $50,000,000 75,000,000 plus (ii) an unlimited amount, amount so long as, in the case of this clause (ii), the First Lien Net Leverage Ratio would not exceed 0.25:1.00 below the First Lien Net Leverage Ratio on the First Amendment Effective Date, calculated at the time of incurrence on a pro forma basis after giving pro forma effect to the Borrowing of such Incremental Term Loan thereto and the application of the proceeds therefrom thereof, and assuming any such Incremental Facility is secured on a first lien basis, whether or not so secured (and, in the case of any Revolving Commitment Increase, assuming all a full drawing of such Revolving Commitment Increase). The amount of such Incremental Facility together with any Incremental Equivalent Debt shall not exceed the Incremental Cap.
(b) The Incremental Term Loans (i) shall rank pari passu in right of payment and pari passu or junior (subject to an intercreditor agreement reasonably satisfactory in form and substance to the Administrative Agent) with respect to security with the existing Term Loans, shall not be guaranteed by any Person that has not guaranteed the existing Term Loans and shall not be secured by assets other than Collateral; (ii) shall mature on such date and amortize on such schedule as each may be agreed by the Borrower and the Lenders providing such Incremental Term Loan, provided that, as of the date of incurrence, no Incremental Term Loan Commitments were fully drawn shall mature earlier than the Term Maturity Date and, as of the date of incurrence, each Incremental Term Loan shall have a Weighted Average Life to Maturity that is no shorter than the then remaining Weighted Average Life to Maturity of the existing Term Loans; (iii) except with respect to the applicable interest rate (subject to clause (e) below) and without “netting” as set forth in this clause (b), shall be on terms and pursuant to documentation determined by the cash proceeds of any Borrower and the Additional Lenders providing the Incremental Term Loans, (iv) may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis (except in respect of any voluntary prepayments of any Class of Loans with an earlier maturity date than any other Class of Loans)) in any voluntary or mandatory prepayments of Loans hereunder; and after giving pro forma effect (v) may include any Previously Absent Financial Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Covenant for the benefit of each Class (provided, however, that if (x) the documentation governing any Permitted Acquisition, Investment or other transaction consummated Incremental Facility that includes a Previously Absent Financial Covenant in connection therewithrespect of and for the benefit of an Incremental Revolving Commitment only and (y) such Previously Absent Financial Covenant is a “springing” financial maintenance covenant solely for the benefit of a Class of Revolving Loans (and not any Class of Term Loans), the Leverage Ratio Previously Absent Financial Covenant shall only be required to be included in this Agreement for the benefit of Revolving Loans); provided that (x) the terms and conditions applicable to the Incremental Loans may also include any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof so long as such additional covenants or other provisions are applicable only during periods after the latest Maturity Date for the Term Loans in effect on the date the Incremental Loans are issued, incurred or obtained or the date on which all non-refinanced Obligations are paid in full and (y) to the extent such terms and documentation are not exceed 2.50:1.00consistent with the existing Term Loans (except with respect to the applicable interest rate, upfront fees, original issue discount or similar fees and as otherwise set forth in this paragraph), such terms and documentation shall be reasonably satisfactory to the Administrative Agent; provided, further, that each (x) any Incremental Term LenderLoans that rank pari passu in right of security and are issued pursuant to an agreement other than this Agreement shall be in the form of notes and not loans and (y) to the extent such Incremental Term Loans rank junior with respect to security with the existing Term Loans, if not already a Lender hereunder, such Incremental Term Loans shall be subject to an intercreditor arrangement reasonably satisfactory to the approval Administrative Agent.
(c) Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Borrower and the Administrative Agent and, in its discretion the case of a Revolving Commitment Increase, the Issuing Bank and each Swingline Lender shall have consented (such consents not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, as applicable. Commitments in respect of Incremental Facilities shall become effective pursuant to an amendment (an “Incremental Facility Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Facilities, if any, each Additional Lender, if any, and the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the The Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000)Facility Agreement may, (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the any other Lenders hereto Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, Borrower to effectuate effect the provisions of this Section 2.15, and, for the avoidance 2.22. The effectiveness of doubt, this Section 2.15(b) any Incremental Facility Agreement shall supersede any provisions be subject to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of such effectiveness, each of the conditions set forth in Section 4.02 (other than as set forth in clause (a) of this Section 2.23) and such other conditions as the parties thereto shall agree.
(d) The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be satisfied (or waived) obligated to provide any Incremental Facility, unless it so agrees in writing. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.23, each Revolving Lender immediately prior to such increase will automatically and the Administrative Agent shall without further act be deemed to have received assigned to each Lender providing a certificate to that effect dated such date and executed by a Financial Officer portion of the BorrowerRevolving Commitment Increase (each, a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Credit Commitment. In addition, (x) each of the Revolving Credit Lenders immediately prior to such increase shall assign to each Revolving Commitment Increase Lender and each of the Incremental Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Incremental Revolving Loans outstanding on such Incremental Facility Agreement closing date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Credit Lenders and Revolving Commitment Increase Lender ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Revolving Commitment Increases, (y) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (z) each Incremental Revolving Credit Lender shall become a Lender with respect to the Incremental Revolving Credit Commitments and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall have received legal opinions, board resolutions not apply to the transactions effected pursuant to the immediately two preceding sentences so long as the Revolving Lenders and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does Lenders do not exceed 0.25 to 1.00 receive less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowingpro rata treatment.
(e) Both immediately before The All-In Yield applicable to the Incremental Facility, that is secured on a pari passu basis with the Obligations, shall be determined by the Borrower and immediately after giving effect the applicable lenders and shall be set forth in each applicable Incremental Facility Agreement; provided, however, that (A) with respect to any Incremental Term Loan CommitmentFacility, the borrowings thereunder and All-In Yield applicable to such Incremental Facility shall not be greater than the application applicable All-In Yield payable pursuant to the terms of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) this Agreement as amended through the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as date of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder calculation with respect to Loans existing at such time plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the Adjusted LIBO Rate floor or Alternate Base Rate floor) with respect to such Loans is increased so as to cause the then applicable Type All-In Yield under this Agreement on such Loans to equal the All-In Yield then applicable to the Incremental Facility minus 50 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of a Adjusted LIBO Rate floor or Alternate Base Rate floor on any Incremental Facility shall be effected solely through an increase in (or implementation of, as applicable) of a Adjusted LIBO Rate floor or Alternate Base Rate floor for such Loan. For the avoidance of doubt this clause (e) shall not apply to Incremental Equivalent Debt incurred in compliance with clause (f) below.
(f) Each The Borrower may, upon notice to the Administrative Agent, at any time or from time to time after the Effective Date, issue, incur or otherwise obtain Indebtedness of the parties hereto hereby agrees Borrower (and any refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or secured on a pari passu or junior lien basis with the Obligations under the initial Loans), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Facility (the “Incremental Equivalent Debt”); provided that (i) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of any Loan Party or any Restricted Subsidiary other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any guarantee by any Person other than the Loan Guarantors, (ii) if such Incremental Equivalent Debt is (x) secured on a pari passu or junior basis with the Obligations under the initial Loans, then such Incremental Equivalent Debt shall be subject to an intercreditor agreement that is reasonably satisfactory, in form and substance, to the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 or (y) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall apply be subject to any conversion of Eurodollar Loans which are Term Loans a lien subordination and intercreditor arrangement reasonably satisfactory, in form and substance, to Base Rate Loans reasonably required by the Administrative Agent and the Borrower, (iii) such Incremental Equivalent Debt (A) shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing and (B) shall not have a Weighted Average Life to effect Maturity which is shorter than the foregoing. In additionWeighted Average Life to Maturity of the then existing Term Loans, (iv) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any Incremental Term such mandatory redemption or prepayment is required to be applied first or pro rata to the Loans are not Other Term Loansand any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, the scheduled amortization payments customary offers to repurchase and prepayment events upon a change of control and a customary acceleration right after an event of default), (v) except as otherwise set forth in Section 2.12(b) required this clause (f), such Incremental Equivalent Debt shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect to be made the initial Loans (except for covenants or other provisions applicable only to periods after the making Latest Maturity Date of the Loan) and such Incremental Term Loans terms and conditions shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.current market t
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Increase in Commitments. (a) The At any time prior to the Business Day immediately preceding the Maturity Date, the Borrower mayshall have the right, in consultation and coordination with the Agent, to request (by written notice to the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity DateAgent), request on one or more occasions, up to three increases in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (each such increase, “Term Loan Commitment Increase”); provided that;
(i) at the time of any such request and upon the effectiveness of any Incremental Amendment (as defined below) referred to below and the date that such Term Loan Commitment Increase becomes effective, as the case may be, no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(ii) all representations and warranties contained in this Agreement shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on the date that such Term Loan Commitment Increase becomes effective, as the case may be (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on such date, except that any representation and warranty which by its terms is made as of a specified date shall be required to be true and correct only as of such specified date;
(iii) the Borrower shall be in pro forma compliance with the covenants in Section 6.12;
(iv) each Term Loan Commitment Increase shall be in a combined minimum increments of $1,000,000 and a minimum principal amount of $5,000,000), ;
(iiv) the date on which such Incremental aggregate amount of all Term Loan Commitments are requested Commitment Increases pursuant to become effective (which this Section 2.15 shall not be less than 15 days nor exceed $100,000,000 for a total aggregate Term Loan Commitment Amount of not more than 60 days after $250,000,000.00; and
(vi) the date Borrower shall have delivered to the Agent a certificate executed by a Responsible Officer of such noticethe Borrower, unless otherwise agreed to by certifying compliance with the Administrative Agentrequirements of each of the preceding clauses (i) and - (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”vi).
(b) The Each notice from Borrower may seek Incremental pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Term Loan Commitments from existing Lenders Commitment Increase.
(each of which c) Term Loan Commitment Increases may be entitled provided, by any existing Lender or by any other Eligible Assignee (any such other bank or other financial institution being called an “Additional Lender”), provided that no existing Lender shall be obligated to agree or decline to participate provide any Term Loan Commitment Increase, unless it so agrees in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders discretion. Commitments in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental respect of Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement Increases shall specify become Commitments (or in the terms of the Incremental Term Loans case to be made thereunder; providedprovided by an existing Lender, thatan increase in such Lender’s applicable Commitment) under this Agreement pursuant to an amendment (each, without an “Incremental Amendment”) to this Agreement and, as appropriate, the prior written consent of other Loan Documents, executed by the Required LendersBorrower, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life each existing Lender agreeing to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loansprovide such Commitment, if any, each Additional Lender, if any, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; andAmendment may, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the any other Lenders hereto Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate effect the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding The effectiveness of any Incremental Amendment shall be subject to (i) the foregoing, no Incremental delivery of an acknowledgement in form and substance reasonably satisfactory to the Agent and executed by each Guarantor acknowledging that such Term Loan Commitment Increases shall become effective constitute (and be included in the definition of) “Obligations” under this Section 2.15 unless (i) on the date each Guaranty of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, Guarantor and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans delivery by the date and time required hereunder with respect Credit Parties of such technical amendments, modifications and/or supplements to the applicable Type of Loan.
(f) Each of respective Loan Documents as are reasonably requested by the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all the Incremental Term Loans (other than Other Term Loans), when originally made, and related Obligations) and are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, entitled to the extent any Incremental Term Loans are not Other Term Loansbenefits of, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loansrelevant Loan Documents.
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Sources: Term Loan Agreement (CNL Healthcare Properties, Inc.)
Increase in Commitments. (a) The At any time on or after the Third Amendment Effective Date, the Borrower mayshall have the right to obtain additional Term Loans either from one or more of the Term Loan Lenders or other Persons, by written notice to in an aggregate amount such that the aggregate amount of Term Loan Commitments in effect at any time shall not exceed $1,083,600,000; provided that (i) any such request for additional Term Loans shall be in a minimum amount of $30,000,000, (ii) the Borrower may make a maximum of three such requests, (iii) the Administrative Agent at has approved each such new Term Loan Lender, such approval not to be unreasonably withheld or delayed, (iv) the procedures described in Section 2.24(c) have been satisfied and (v) with respect to any time after the Closing Date and increase prior to the Existing Term Loan Maturity Date, request such additional Term Loans shall be on one the same economic terms and conditions as the Extended Term Loans.
(b) At any time on or more occasionsafter the Existing Revolving Credit Termination Date, up the Borrower shall have the right to three in increase the aggregateRevolving Credit Commitment by obtaining additional Revolving Credit Commitments, Incremental Term Loan Commitments either from one or more Incremental Term Lendersof the Revolving Credit Lenders or other Persons, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount such that the aggregate amount of Revolving Credit Commitments in effect at any time shall not to exceed the sum of $150,000,000; provided that (i) $50,000,000 plus (ii) any such request for an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which increase shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000)30,000,000, (ii) the date on which Borrower may make a maximum of three such Incremental requests, (iii) the Administrative Agent has approved each such new Revolving Credit Lender, such approval not to be unreasonably withheld or delayed, and (iv) the procedures described in Section 2.24(c) have been satisfied.
(c) Any amendment hereto for an increase in Term Loan Commitments are requested or Revolving Credit Commitments pursuant to become effective Sections 2.24(a) and (which b), respectively, shall not be less than 15 days nor more than 60 days after in form and substance reasonably satisfactory to the date Administrative Agent and shall only require the written signatures of such notice, unless otherwise agreed to by the Administrative Agent, the Borrower and the Lender(s) and (iii) whether such Incremental being added or increasing their Term Loan Commitments are Commitment and/or Revolving Credit Commitment. As a condition precedent to be Term Commitments or commitments to make term loans with terms different from such an increase, (i) the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent a certificate of each Loan Party signed by an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment authorized officer of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify Party certifying and attaching the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term resolutions adopted by such Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable Party approving or consenting to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrowerincrease, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromsuch increase, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (Bx) the representations and warranties contained herein in Section 4 and in the other Loan Documents shall be true and correct in all material respects (except for those representations that any representation and warranties warranty that are conditioned by is qualified as to “materiality” or “material adverse effect”, which Material Adverse Effect” shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date), except to the extent that such representations and warranties specifically relate refer to an earlier date, in which case such representations and warranties shall have been they are true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower date and (y) no Default or Event of Default shall have occurred and be continuing and (iii) if requested by the Specified RepresentationsAdministrative Agent, which the Borrower shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, deliver to the Administrative Agent shall have received a Notice of Borrowing customary legal opinions, in respect of any Incremental Term Loans by the date form and time required hereunder with respect substance, and from counsel, reasonably satisfactory to the applicable Type of LoanAdministrative Agent.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
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Increase in Commitments. (a) The Any Borrower may, may by written notice to the Administrative Agent at any time after the Closing Date and prior elect to the Term Loan Maturity Date, request on add one or more occasionsincremental term loan facilities hereunder (each, up an “Incremental Term Facility”; the commitments thereunder are referred to three in the aggregate, as “Incremental Term Loan Commitments from one or more Commitments” and loans pursuant thereto “Incremental Term LendersLoans”) and/or increase the Revolving Commitments (any such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to as “Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Incremental Facilities”); provided that the (which may or may not include any existing Lender 1) total aggregate amount for all such Incremental Facilities (assuming, for the purposes of determining each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do soclauses (A) and (B)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause any Incremental Revolving Increase, the full amount thereof is drawn) shall not (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds as of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agentincurrence thereof) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% exceed the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus $450,000,000 and (B) one-quarter an amount such that, subject to Section 1.03(e), at the time of such incurrence and after giving effect thereto on a pro forma basis the Secured Leverage Ratio (calculated assuming (i) no proceeds of any such Incremental Facility shall be considered Unrestricted Cash and (ii) any amounts incurred under clause (A) concurrently with amounts incurred under clause (B) will not count as Indebtedness for the purposes of calculating the Secured Leverage Ratio in clause (B) at such time) is less than or equal to 3.00 to 1.00 and (2) the total aggregate amount for each Incremental Facility shall not be less than a minimum principal amount of such upfront fee paid on $25,000,000 or, if less, the Closing Date in respect of the Term Loans (the remaining amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal permitted pursuant to the sum of foregoing clause (1). Each such notice shall specify (x) the margin above date (each, an “Increase Effective Date”) on which such Borrower proposes that the Adjusted Eurodollar Rate on such Other Term Loans (Incremental Facility shall be effective, which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on a date not less than five Business Days after the date on which such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life notice is delivered to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and (y) the Borroweridentity of each Eligible Assignee to whom such Borrower proposes any portion of such Incremental Facility be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Incremental Facility may elect or decline, in its sole discretion, to effectuate provide such portion of the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12Incremental Facility. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 notice shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated required in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually Incremental Revolving Increase provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term LoansAmendment No. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan1.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
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Increase in Commitments. (a) The Borrower may, by written notice to the Administrative Agent at any time after (which shall promptly deliver a copy to each of the Closing Date and prior to the Term Loan Maturity DateBanks), request on one or more occasions, up to three in that the aggregate, Incremental Term Loan total Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in increased by an aggregate principal amount not to exceed less than $25,000,000 for any such increase and not greater than $250,000,000 minus the sum aggregate amount of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in prior or simultaneous increases of the case of Commitments under this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan Agreement and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed)Multi-Year Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan requested increase in the total Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are increase is requested to become effective (which shall be not be less than 15 45 days nor or more than 60 days after the date of such notice), unless otherwise agreed and shall offer each Bank the opportunity to increase its Commitment by its Applicable Percentage of the proposed increased amount. Each Bank shall, by notice to the Borrower and the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are Agent given not more than 20 days after the date of the Borrower's notice, either agree to be Term Commitments increase its Commitment by all or commitments to make term loans with terms different from a portion of the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders offered amount (each of which may be entitled to agree Bank so agreeing being an "INCREASING BANK") or decline to participate increase its Commitment (and any Bank that does not deliver such a notice within such period of 20 days shall be deemed to have declined to increase its Commitment) (each Bank so declining or deemed to have declined being a "NON-INCREASING BANK"). In the event that, on the 20th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Banks shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in its sole discretion if so offered the opportunity to do so) and total Commitments requested by the Borrower, the Borrower may arrange for one or more banks or other Persons additional banks, financial institutions and (any such bank or other institutional lenders who will become Incremental Term Lenders financial institution referred to in connection therewith. The Borrower and this paragraph (a) being called an "AUGMENTING BANK"), which may include any Bank, to extend Commitments or increase its existing Commitments in an aggregate amount equal to the unsubscribed amount; provided that each Incremental Term Lender Augmenting Bank, if not already a Bank hereunder, shall execute and deliver be -------- subject to the approval of the Administrative Agent an Incremental Term Loan Assumption Agreement (which approval shall not be unreasonably withheld) and each Augmenting Bank shall execute all such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan its Commitment of such Incremental Term Lenderand its status as a Bank hereunder. Each Incremental Term Loan Assumption Agreement Increases and new Commitments created pursuant to this paragraph (a) shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, become effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds specified in the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from notice delivered by the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement pursuant to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions first sentence of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12paragraph. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan increase in the total Commitments (or in the Commitment of any Bank) shall become effective under this Section 2.15 unless paragraph unless, (i) on the date of such effectivenessincrease, the conditions set forth in paragraphs (b) and (c) of Section 4.02 3.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially (with sufficient copies for each of the Banks) documents consistent with those delivered on the Closing Date, under clauses (b) and (iiic) of Section 3.01 as to the Credit Parties corporate power and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn authority of the Borrower to borrow hereunder and without “netting” as to the cash proceeds enforceability of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately this Agreement after giving effect to such increase.
(b) On the effective date (the "INCREASE EFFECTIVE DATE") of any Incremental Term Loan Commitmentincrease in the total Commitments pursuant to paragraph (a) above (the "COMMITMENT INCREASE"), (i) the borrowings thereunder aggregate principal amount of the Loans outstanding (the "INITIAL LOANS") immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Increasing Bank and each Augmenting Bank that shall have been a Bank prior to the application of proceeds therefrom, Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) no Event the product of Default shall have occurred and be continuing or would exist (1) such Bank's Applicable Percentage (calculated after giving effect thereto to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects product of (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects1) on and as of such date Bank's Applicable Percentage (calculated without giving effect to the same extent as though made on and as Commitment Increase) multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Bank that date, except shall not have been a Bank prior to the extent such representations and warranties specifically relate Commitment Increase shall pay to Administrative Agent in same day funds an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything amount equal to the contrary product of (1) such Augmenting Bank's Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (iv) after the Administrative Agent receives the funds specified in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and clauses (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (yiii) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicableabove, the Administrative Agent shall have received a Notice pay to each Non- Increasing Bank the portion of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect such funds that is equal to the applicable Type difference between (A) the product of Loan.
(f1) Each such Non-Increasing Bank's Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Initial Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and (B) the product of (1) such Non-Increasing Bank's Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings (v) after the effectiveness of the Commitment Increase, the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by deemed to have made new Borrowings (the "SUBSEQUENT BORROWINGS") in an aggregate principal amount equal to the aggregate principal amount of such Incremental Term Loans.the Initial Loans in the currency or currencies, and of the types and for the Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.02, (vi) each Non-Increasing Bank, each Increasing Bank and each Augmenting Bank shall be deemed to hold its Applicable Percentage of each Subsequent Borrowing (calculated after giving effect to the Commitment Increase) and
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Increase in Commitments. (a) The Borrower may, by written notice to Company shall have the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amountright, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment as no Default or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing continuing, without the consent of any Bank (except as described in clause (i) below) but with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), at any time prior to the fifth year anniversary of the Effective Date, to increase the total aggregate amount of the Commitments hereunder by (a) adding a lender or would exist lenders hereto with a Commitment or Commitments up to the amount (or aggregate amount) of any such increase (which lender or lenders shall thereupon become `Banks' hereunder) and/or (b) enabling any Bank or Banks to increase its (or their) Commitment (or Commitments) up to the amount of any such increase; provided, however, that (i) in no event shall any Bank's Commitment be increased without the consent of such Bank, (ii) if any Committed Loans are outstanding hereunder on the date that any such increase is to become effective, the principal amount of all such Committed Loans shall on or prior to the effectiveness of such increase, at the option of the Company, either (A) be repaid, together with accrued interest thereon and any costs incurred by any Bank in accordance with Section 2.15 (but all such Loans may, on the terms and conditions hereof, be reborrowed on the date that any such increase becomes effective pro rata among all of the Banks) or (B) be converted into Negotiated Rate Loans with the same terms (including, without limitation, interest rate) and maturity of such Committed Loans, (iii) if any Letter of Credit is outstanding hereunder on the date that such increase is to become effective, appropriate arrangements shall be made so that, after giving effect thereto to such increase, each Bank's Letter of Credit Exposure is equal to such Bank's Commitment Percentage of the Letter of Credit Exposure of all of the Banks (and, if such arrangements are not made, such increase may not be made), (iv) in no event shall any such increase result in the total aggregate amount of the Commitments exceeding $1,500,000,000 and (Bv) the representations and warranties contained herein and no increase in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned Commitments contemplated by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or 2.18 shall result in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance one Bank hereunder having a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness Commitment in an amount which equals more than 20% of the Borrower aggregate amount of all Commitments hereunder. The Company and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect and the Banks agree to use their best efforts to effectuate any such increase, subject to the terms and conditions set forth herein (including, without limitation, by execution and delivery of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loanappropriate documentation).
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (Honeywell Inc)
Increase in Commitments. (a) The Borrower mayCompany shall have the right at any time (provided, that such right may not be exercised by written notice the Company more than twice after the Closing Date, and each such exercised increase shall be in an amount not less than $25,000,000) to increase the Total Commitment hereunder by an aggregate amount, for all exercises pursuant to this Section 2.05, which is less than or equal to $100,000,000 by (i) requesting (which request may be agreed to or declined by such Lender in its sole discretion) that one or more Lenders increase its respective Revolving Credit Commitment or (ii) adding to this Agreement one or more financial institutions as a Lender; provided, however, that each such financial institution shall be approved by the Company and the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may approval shall not include any existing Lender (each be unreasonably withheld). For the avoidance of which may be entitled doubt, if the Company’s request pursuant to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of clause (i) $50,000,000 plus above is declined by such Lender, such request shall not be considered an exercise of the Company’s right for purposes of the first proviso in the preceding sentence. An increase in the Total Commitment shall be effectuated pursuant to an agreement with an Increasing Lender or Additional Lender, as applicable, in form and substance satisfactory to the Company and the Administrative Agent pursuant to which (iix) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term an Additional Lender, if not already such Additional Lender shall undertake a Lender hereunderRevolving Credit Commitment, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which Revolving Credit Commitment shall be in minimum increments an amount at least equal to $10,000,000 or an integral multiple of $1,000,000 and a minimum amount of $5,000,000)500,000 in excess thereof, (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if in the Lenders making case of an Increasing Lender, such Other Term Loans receive Increasing Lender shall increase its Revolving Credit Commitment, which increase in its Revolving Credit Commitment shall be at least equal to $1,000,000 or an upfront fee (other than a customary arrangementintegral multiple of $500,000 in excess thereof, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (Bz) four. The other terms in the case of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement any Additional Lender, such Additional Lender shall agree to the extent not consistent with be bound as a Lender under the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events and conditions of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in Documents. Upon the reasonable opinion effectiveness of any such agreement and its acknowledgement by the Company and the Administrative Agent (the date of any such effectiveness and acknowledgement, an “Increased Commitment Date”), such Additional Lender shall thereupon become a “Lender” for all purposes of this Agreement with a Revolving Credit Commitment in the amount set forth in such agreement or, as applicable, the Revolving Credit Commitment of such Increasing Lender shall be increased in the amount set forth in such agreement, and this Agreement (including the signature page of such Increasing Lender) shall be deemed amended to the extent, but only to the extent, necessary to reflect the addition of such Additional Lender or the increased Revolving Credit Commitment of such Increasing Lender, the resulting adjustment of the Revolving Credit Commitments arising therefrom and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary adjustments described in Section 11.12. 2.05(d) hereof.
(b) Any such deemed amendment may increase in the Total Commitment pursuant to Section 2.05(a) hereof shall not be memorialized in writing effective unless:
(i) the Company shall have given the Administrative Agent notice (which notice shall be promptly forwarded by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheldeach Lender) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied desired increase at least fifteen (15) Business Days (or waived) and such shorter period as the Administrative Agent shall have received a certificate may agree to that effect dated in the given instance) prior to any such date and executed by a Financial Officer of the Borrower, proposed Increased Commitment Date;
(ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition no Default or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing as of the date of the notice referred to in the foregoing clause (i) or would exist after giving effect thereto and on the Increased Commitment Date; and
(Biii) the representations and warranties contained herein and of the Company in the other Loan Documents Article IV hereof shall be true and correct in all material respects on and as of the date of the notice referred to in clause (except for those representations i) and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true on and correct in all respects) as of the applicable Increased Commitment Date with the same effect as if made on and as of such notice date to the same extent as though made on and as of that date, or Increased Commitment Date (except to the extent such representations and warranties specifically relate expressly refer to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which they shall be true and correct in all respects) on and as of such earlier date; provided that). Each notice given by the Company pursuant to Section 2.05(b)(i) hereof shall constitute a representation and warranty by the Company hereunder, notwithstanding anything as of the date of each such notice and as of each Increased Commitment Date, and after giving effect to the contrary increase in the Total Commitment effective thereon, that the conditions in this Section 2.15 or in any other provision of any Loan Document2.05(b) are satisfied.
(c) Effective on each Increased Commitment Date, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event the amount of Default under Section 8.01(a) each Lender’s risk participation in all outstanding Letters of Credit shall be deemed to be automatically increased or (i) exists or would result from decreased, as applicable, to reflect any changes in such Lender’s Commitment Proportion after giving effect to the incurrence of such Incremental Term Loansincrease in the Total Commitment effective thereon, and (ii) the representations amount of the Revolving Credit Loans then outstanding and warranties held by each Lender shall be limited adjusted to reflect any such changes in such Lender’s Commitment Proportion. Each Lender having Revolving Credit Loans then outstanding and whose Commitment Proportion has been decreased as a result of the increase in the Total Commitment shall be deemed to have assigned, without recourse, such portion of such Revolving Credit Loans as shall be necessary to effectuate such adjustment to the Additional Lenders and Increasing Lenders (and each such assignment shall be deemed a prepayment for purposes of Section 3.08 hereof). Each Additional Lender and Increasing Lender shall (x) the representation and warranty that the be deemed to have assumed such portion of such Revolving Credit Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) fund on the Specified RepresentationsIncreased Commitment Date, which shall be true and correct both at such assumed amounts to the time of signing Agent for the account of the relevant acquisition or similar agreement assigning Lender in accordance with the provisions hereof.
(d) The Administrative Agent shall promptly notify the Lenders and at the time Company of any increase in the incurrence Total Commitment under this Section 2.05 and of each Lender’s Commitment Proportion after giving effect to any such Incremental Term Loans. If applicableincrease.
(e) Upon the effectiveness of any increase in the Total Commitment in accordance with this Section 2.05, the Company agrees to execute Revolving Credit Notes in favor of each Additional Lender and each Increasing Lender upon the request of such Lender to evidence such Lender’s Revolving Credit Commitment after giving effect to such increase to the Total Commitment and to execute such other documents as the Administrative Agent shall deem necessary and appropriate to give effect to this Section 2.05; provided, that any Increasing Lender who has requested a new Revolving Credit Note in an amount equal to its increased Revolving Credit Commitment shall have received a Notice of Borrowing in respect of returned for cancellation any Incremental Term Loans by the date and time required hereunder with respect other Revolving Credit Notes previously issued to the applicable Type of Loanit under this Agreement.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Increase in Commitments. (a) The TheA Borrower may, may by written notice to the Administrative Agent at any time after the Closing Date and prior elect to the Term Loan Maturity Date, request on add one or more occasionsincremental term loan facilities hereunder (each, up an “Incremental Term Facility”; the commitments thereunder are referred to three in the aggregate, as “Incremental Term Loan Commitments from one or more Commitments” and loans pursuant thereto “Incremental Term LendersLoans”) and/or increase commitments under the Revolving Facility (any such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to as “Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Incremental Facilities”); provided that the (which may or may not include any existing Lender 1) total aggregate amount for all such Incremental Facilities (assuming, for the purposes of determining each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do soclauses (A) and (B)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause any Incremental Revolving Increase, the full amount thereof is drawn) shall not (ii), after giving pro forma effect to as of any date of incurrence thereof) exceed $150,000,000the sum of (A) $200,000,000 and (B) an amount such that at the Borrowing time of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, incurrence and after giving effect thereto on a pro forma effect basis the Senior Secured Leverage Ratio is less than or equal to any Permitted Acquisition2.75 to 1.00 and (2) the total aggregate amount for each Incremental Facility shall not be less than a minimum principal amount of $25,000,000 or, Investment or other transaction consummated in connection therewith)if less, the Leverage Ratio remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall not exceed 2.50:1.00; providedspecify (x) the date (each, an “Increase Effective Date”) on which thesuch Borrower proposes that each the Incremental Term Lender, if not already a Lender hereunder, Facility shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheldeffective, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) date not less than five Business Days after the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver notice is delivered to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time identity of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of each Eligible Assignee to whom thesuch Borrower proposes any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making portion of such Incremental Term Loans shall Facility be ratably increased by allocated and the aggregate principal amount amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Incremental Term LoansFacility may elect or decline, in its sole discretion, to provide such portion of the Incremental Facility.
Appears in 1 contract
Increase in Commitments. (a) The Borrower mayCompany may at any time, ----------------------- by written notice to the Administrative Agent at any time after Depositary Bank, propose that the Closing Date and aggregate of the Commitments be increased in excess of the aggregate of the Commitments then in effect (a "Commitment Increase"), effective as of a date prior to the Term Loan Maturity Revolver Expiration Date (the "Increase Date, request on one or more occasions, up ") as to three which agreement is to be reached by an earlier date specified in such notice (the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so"Commitment Date")) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, however, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then minimum proposed Commitment -------- ------- Increase per notice shall be in effect for Term Loans that are Eurodollar Loans plus an amount no less than $5,000,000, (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have has occurred and be is continuing or would exist after giving effect thereto and (BC) the representations and warranties contained herein and of the Company in the other Loan Documents Article VII shall be true and correct in all material respects with the same ------- --- effect as if made on such Increase Date. The Depositary Bank shall notify the Banks thereof promptly upon its receipt of any such notice. If agreement is reached on or prior to the Commitment Date with one or more Banks and Assuming Banks, if any, as to a Commitment Increase (except for those representations and warranties that are conditioned which may be less than specified in the applicable notice from the Company), such agreement to be evidenced by “materiality” a notice in reasonable detail from the Company to the Depositary Bank on or “material adverse effect”prior to the Commitment Date, which the Assuming Banks, if any, shall be true and correct in all respects) on and become Banks hereunder as of the Increase Date and the Commitments of such date Banks and such Assuming Banks shall become or be, as the case may be, as of the Increase Date the amounts specified in such notice (and the Depositary Bank shall give notice thereof to the same extent as though made on and as of that dateBanks (including such Assuming Banks)); provided, except to the extent such representations and warranties specifically relate to an earlier datehowever, in which case such representations and warranties shall have been true and correct in all material respects that: -------- -------
(except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (iia) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent Depositary Bank shall have received (with copies for each Bank, including each Assuming Bank), on or prior to the Increase Date, an opinion of counsel for the Company in substantially the form of Exhibit D ------- - hereto and an opinion of counsel for each other Borrower substantially in the form of Exhibit F hereto, dated such Increase Date, together with a Notice of Borrowing in respect of any Incremental Term Loans ------- - copy, certified on the Increase Date by the date Secretary or an Assistant Secretary of the pertinent Borrower, of the resolutions adopted by the Board of Directors of the Company and time required hereunder with respect each such other Borrower authorizing such Commitment Increase;
(b) each such Assuming Bank shall have delivered, on or prior to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In additionIncrease Date, to the extent Depositary Bank an appropriate Assumption Agreement; and
(c) each Bank which proposes to increase its Commitment in connection with such Commitment Increase shall have delivered, on or prior to the Increase Date, confirmation in writing satisfactory to the Depositary Bank as to its increased Commitment. In the event that the Depositary Bank shall not have received notice from the Company as to such agreement on or prior to the Commitment Date or the Company shall, by notice to the Depositary Bank prior to the Increase Date, withdraw such proposal or any Incremental Term Loans are of the actions provided for above in clauses (a) through --- (c) of this Section 1.1.8. shall not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased have occurred by the aggregate principal amount of Increase Date, such Incremental Term Loans.--- ------- ------ -5-
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Increase in Commitments. Borrower shall also have the right from time to time, provided no Default or Unmatured Default has occurred and is then continuing, to increase the Aggregate Commitmentrequest (ai) The Borrower mayincreases in the Revolving Commitments, by written notice to the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity Date, request on one A Loans or more occasions, the Term Loans B Loans or (ii) the making of additional Term Loans (the “Additional Term Loans”) by up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled an additional $500,000,000450,000,000 to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an a maximum aggregate principal amount not to exceed the sum of $1,100,000,0001,250,000,000 (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect reduced to the Borrowing of such Incremental Term Loan and extent Borrower has terminated or reduced the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith)Revolving Commitments, the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be A Loans or the Term B Loans) by either adding new lenders as Lenders (subject to the Administrative Agent’s prior written approval of the Administrative Agent in its discretion (not to be unreasonably withheldidentity of such new lenders) or obtaining the agreement, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be at such Lender’s or Lenders’ sole discretion, of one or more of the then current Lenders to increase its or their Revolving Commitments, Term A Loans or Term B Loans or to make Additional Term Loans. Each such increase in minimum increments the Commitments or the making of $1,000,000 and a Additional Term Loans must be an aggregate minimum amount of $5,000,000)25,000,000 and integral multiples of $5,000,000 in excess thereof. Each such increase may apply to the Revolving Commitments, the Term A Loan Commitments, or the Term B Loan CommitmentsLoans, Term B Loans or the making of Additional Term Loans, or a combination thereof, as may be determined by Borrower and the Lenders providing such increase. OnEffecting any increase of the Revolving Commitments, the Term A Loans, the Term B Loans or the making of Additional Term Loans under this Section is subject to the following conditions precedent: (iiw) no Default or Unmatured Default has occurred and is then continuing or shall be in existence on the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such noticeincrease of the Revolving Commitments, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term A Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term B Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.of
Appears in 1 contract
Increase in Commitments. (a) The Borrower may, may by written notice to the Administrative Agent at elect to seek commitments (“Additional Commitments”) to increase the aggregate principal amount of any time after the Closing Date and prior existing Class of Term Loans or to the Term Loan Maturity Date, request on establish one or more occasions, up to three in new Classes of Term Loans; provided that:
(i) the aggregate, Incremental Term Loan aggregate amount of all Additional Commitments from one or more Incremental Term Lenders, (which may or may shall not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (iA)(x) $50,000,000 plus 75,000,000 less (iiy) an unlimited amount, so long as, the aggregate principal amount of First Lien Indebtedness incurred under Section 7.02(b)(ii) less (z) the aggregate principal amount of Incremental Notes incurred under Section 7.02(v)(A) (the amount in the case of this clause (iiA), after giving pro forma effect the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans, to the Borrowing extent such Additional Term Loans were obtained pursuant to clause (C) below), plus (C) after utilization of the amounts available pursuant to clauses (A) and (B) above, additional amounts so long as the Consolidated Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Additional Term Loans available under such Additional Commitments had been outstanding on the last day of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” period, and, in each case excluding the cash proceeds of any Incremental Term LoansLoans pursuant to such Additional Commitments, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewithdo not exceed 6.50:1.00 (this clause (C), the Leverage “Incremental Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion Exception”);
(not to be unreasonably withheld, conditioned ii) any such increase or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which any new Class shall be in minimum increments of $1,000,000 and a minimum an aggregate amount of $5,000,000), (ii) the date on which 10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such Incremental Term Loan Commitments are requested to become effective (which shall not amount may be less than 15 days nor more than 60 days after $10,000,000 if such amount represents all remaining availability under the date of such notice, unless otherwise agreed to by limit set forth in the Administrative Agent) and preceding clause (i);
(iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Additional Term Loans shall be no earlier than the Term Loan Latest Maturity Date and Date;
(iiiv) the weighted average life Additional Term Loans shall have a Weighted Average Life to maturity Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”);
(v) the Applicable Rate with respect to any Other Additional Term Loans shall be no shorter determined by the Borrower and the lenders of the Additional Term Loans; provided that with respect to any Additional Term Loans incurred prior to the second anniversary of the Initial Funding Date, (x) in the event that the Applicable Rate for any such Additional Term Loans is greater than the remaining weighted average life Applicable Rate for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to maturity of the Closing Date extent necessary so that the Applicable Rate for the Additional Term Loans is not more than 50 basis points higher than the Applicable Rate for the Initial Term Loans, and ; provided, further, that, in determining the Applicable Rate with respect to Additional Term Loans or the applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if the Initial Yield on such Other any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds by more than 0.50% the sum of (A) Eurodollar Rate “floor” or Base Rate “floor” applicable to the margin then in effect for Outstanding Term Loans that are Loans, the Eurodollar Loans plus (B) one-quarter of Rate “floor” or Base Rate applicable to the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Initial Term Loans shall automatically be increased by so that the Yield Differentialapplicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), effective upon the making of amortization schedule applicable to the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as Additional Commitments shall be determined by the Administrative Agent, Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and security with the existing Term Loans ; and
(ix) the Additional Term Loans may have optional prepayment terms (including call protection and prepayment premiums) and mandatory prepayment terms as may be equal agreed between the Borrower and the lenders of the Additional Term Loans so long as such Additional Term Loans do not participate on a greater than pro rata basis in any such mandatory prepayments as compared to the sum of Initial Term Loans.
(b) Each such notice shall specify (x) the margin above date (each, an “Additional Commitments Effective Date”) on which the Adjusted Eurodollar Rate Borrower proposes that the Additional Commitments shall be effective, which shall be a date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof), (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such Other representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.16(b), the representations and warranties contained in Section 5.05(a) shall be deemed to refer to the most recent financial statements furnished pursuant to subsection (a) of Section 6.01 and (ii) no Default or Event of Default exists. On each Additional Commitments Effective Date with respect to any Additional Commitment, each Person with an Additional Commitment shall make an Additional Term Loan to the Borrower in a principal amount equal to such Person’s Additional Commitment.
(c) Any other terms of and documentation entered into in respect of any Additional Commitments shall be on terms and pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Commitments (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that to the extent such other terms and documentation in respect of any Additional Term Loans are not consistent with those of the Initial Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement except to the extent not consistent with the terms applicable to the Term Loans hereunder permitted by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above) they shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders .
(d) The Additional Commitments shall be entitled to documented by an Additional Borrowing Amendment executed by the benefit Persons providing the Additional Commitments (and the other Persons specified in the definition of such covenants, events of default, representations and warrantiesAdditional Borrowing Amendment but no other existing Lender), and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment Additional Borrowing Amendment may without the consent of the other Lenders hereto effect provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate effect the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing2.16.
(e) Both immediately before and immediately after giving effect to This Section 2.16 shall supersede any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing provisions in Section 2.13 or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date Section 11.01 to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loancontrary.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Sources: Second Lien Credit Agreement (American Renal Associates Holdings, Inc.)
Increase in Commitments. (a) The Borrower may, by written notice to the Administrative Agent at (which shall promptly deliver a copy to each of the Banks), request that the total Commitments be increased by an amount not less than $25,000,000 for any time such increase and not greater than $250,000,000 minus the aggregate amount of prior or simultaneous increases of the Commitments under this Agreement and the 364-Day Agreement. Such notice shall set forth the amount of the requested increase in the total Commitments and the date on which such increase is requested to become effective (which shall be not less than 45 days or more than 60 days after the Closing Date date of such notice), and prior shall offer each Bank the opportunity to increase its Commitment by its Applicable Percentage of the proposed increased amount. Each Bank shall, by notice to the Term Loan Maturity DateBorrower and the Administrative Agent given not more than 20 days after the date of the Borrower's notice, request either agree to increase its Commitment by all or a portion of the offered amount (each Bank so agreeing being an "INCREASING BANK") or decline to increase its Commitment (and any Bank that does not deliver such a notice within such period of 20 days shall be deemed to have declined to increase its Commitment) (each Bank so declining or deemed to have declined being a "NON-INCREASING BANK"). In the event that, on the 20th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph, the Banks shall have agreed pursuant to the preceding sentence to increase their Commitments by an aggregate amount less than the increase in the total Commitments requested by the Borrower, the Borrower may arrange for one or more occasionsbanks or other financial institutions (any such bank or other financial institution referred to in this paragraph (a) being called an "AUGMENTING BANK"), up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any Bank, to extend Commitments or increase its existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so)) Commitments in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus (ii) an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect equal to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00unsubscribed amount; provided, provided that each Incremental Term LenderAugmenting Bank, if not already a Lender Bank -------- hereunder, shall be subject to the approval of the Administrative Agent in its discretion (which approval shall not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do so) and other Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender Augmenting Bank shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and all such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan its Commitment of such Incremental Term Lenderand its status as a Bank hereunder. Each Incremental Term Loan Assumption Agreement Increases and new Commitments created pursuant to this paragraph (a) shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, become effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds specified in the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from notice delivered by the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement pursuant to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effectuate the provisions first sentence of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12paragraph. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan increase in the total Commitments (or in the Commitment of any Bank) shall become effective under this Section 2.15 unless paragraph unless, (i) on the date of such effectivenessincrease, the conditions set forth in paragraphs (b) and (c) of Section 4.02 3.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially (with sufficient copies for each of the Banks) documents consistent with those delivered on the Closing Date, under clauses (b) and (iiic) of Section 3.01 as to the Credit Parties corporate power and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn authority of the Borrower to borrow hereunder and without “netting” as to the cash proceeds enforceability of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately this Agreement after giving effect to such increase.
(b) On the effective date (the "INCREASE EFFECTIVE DATE") of any Incremental Term Loan Commitmentincrease in the total Commitments pursuant to paragraph (a) above (the "COMMITMENT INCREASE"), (i) the borrowings thereunder aggregate principal amount of the Loans outstanding (the "INITIAL LOANS") immediately prior to giving effect to the Commitment Increase on the Increase Effective Date shall be deemed to be paid, (ii) each Increasing Bank and each Augmenting Bank that shall have been a Bank prior to the application of proceeds therefrom, Commitment Increase shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) no Event the product of Default shall have occurred and be continuing or would exist (1) such Bank's Applicable Percentage (calculated after giving effect thereto to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects product of (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects1) on and as of such date Bank's Applicable Percentage (calculated without giving effect to the same extent as though made on and as Commitment Increase) multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Bank that date, except shall not have been a Bank prior to the extent such representations and warranties specifically relate Commitment Increase shall pay to Administrative Agent in same day funds an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything amount equal to the contrary product of (1) such Augmenting Bank's Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings, (iv) after the Administrative Agent receives the funds specified in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and clauses (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (yiii) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicableabove, the Administrative Agent shall have received a Notice pay to each Non- Increasing Bank the portion of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect such funds that is equal to the applicable Type difference between (A) the product of Loan.
(f1) Each such Non-Increasing Bank's Applicable Percentage (calculated without giving effect to the Commitment Increase) multiplied by (2) the amount of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Initial Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and (B) the product of (1) such Non-Increasing Bank's Applicable Percentage (calculated after giving effect to the Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings (v) after the effectiveness of the Commitment Increase, the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by deemed to have made new Borrowings (the "SUBSEQUENT BORROWINGS") in an aggregate principal amount equal to the aggregate principal amount of such Incremental Term the Initial Loans in the currency or currencies, and of the types and for the Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.02, (vi) each Non-Increasing Bank, each Increasing Bank and each Augmenting Bank shall be deemed to hold its Applicable Percentage of each Subsequent Borrowing (calculated after giving effect to the Commitment Increase) and (vii) the Borrower shall pay each Increasing Bank and each Non-Increasing Bank any and all accrued but unpaid interest on the Initial Loans.
Appears in 1 contract
Increase in Commitments. (a) The Borrower mayProvided there exists no Default, by written upon notice to the Administrative Agent at any (which shall promptly notify the Lenders), the Borrower may from time after to time, request an increase in the Closing Date and prior Aggregate Commitments to an amount (for all such requests) not exceeding an aggregate additional $80,000,000 of Commitments (in addition to the Term Loan Maturity Date, request $220,000,000 of Aggregate Commitments on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the opportunity to do sodate hereof)) in an aggregate principal amount not to exceed the sum of ; provided that (i) $50,000,000 plus (ii) any such request for an unlimited amount, so long as, in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which increase shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,0005 million, and (ii) the Borrower may make a maximum of four such requests. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall also specify (A) the upfront fee, if any, to be paid to the Lenders which agree to provide the requested increase in Commitments, and (B) the time period within which each Lender is requested to respond (which shall in no event be less than five (5) Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. The Administrative Agent shall notify the Borrower and each Lender of the Lenders' responses to each request made hereunder. If following such time period the Lenders have not agreed to provide the full amount of a requested increase, then the Borrower, at its option, may (i) rescind all or a portion of such request made to the existing Lenders under this Section 2.20 and instead invite one or more Eligible Assignees to become a Lender hereunder pursuant to a Joinder Agreement; provided, however, that such Eligible Assignee or Eligible Assignees shall have agreed to provide the full amount of such requested increase (and shall not receive any upfront fees except as have been offered to the Lenders), (ii) accept the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to offers made by the Administrative Agent) and existing Lenders or (iii) whether such Incremental Term Loan Commitments are accept the offers made by the existing Lenders and also invite additional Eligible Assignees to be Term Commitments or commitments become Lenders pursuant to make term loans with terms different from the Term Loans (“Other Term Loans”)a Joinder Agreement.
(b) The Borrower may seek Incremental Term Loan If the Aggregate Commitments from existing Lenders (each of which may be entitled to agree or decline to participate are increased in its sole discretion if so offered the opportunity to do so) and other Persons additional banksaccordance with this Section, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent Borrower shall reasonably specify to evidence determine the Incremental Term Loan Commitment effective date (the "Increase Effective Date") and the final allocation of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreementincrease. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each Borrower and the Lenders of the parties hereto hereby agrees that, upon the effectiveness final allocation of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement increase and the other Loan Documents as may be necessary or appropriateIncrease Effective Date. As a condition precedent to such increase, in the reasonable opinion of Borrower shall deliver to the Administrative Agent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate dated as of the Increase Effective Date (for further distribution to that effect dated such date and executed each Lender) signed by a Financial Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided Borrower certifying that, notwithstanding anything to the contrary in this Section 2.15 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.,
Appears in 1 contract
Sources: Credit Agreement (Markel Corp)
Increase in Commitments. (a) The Borrower mayProvided there exists no Default, by written upon notice to the Administrative Agent at (which shall promptly notify the Lenders), the Company may from time to time, request an increase in the Aggregate Commitments (as such term is defined in this Agreement) and the Aggregate Commitments (as such term is defined in the Three-Year Credit Facility) collectively by an aggregate amount (for all such requests) not exceeding $400,000,000; provided, however, that any time after such increase in the Closing Date and Commitments shall (i) prior to the Term Revolving Loan Maturity Date, request on one or more occasions, up to three be allocated between the Commitments (as such term is defined in the aggregate, Incremental Term Loan Three-Year Credit Facility) and the Commitments from one or more Incremental Term Lenders, (which may or may not include any existing Lender (as such term is defined in this Agreement) on a pro rata basis such that the proportions of each such type of which may be entitled to agree or decline to participate in its sole discretion if so offered Commitment as a portion of the opportunity to do so)) in an aggregate principal amount not to exceed the sum of (i) $50,000,000 plus total Commitments are equal; and (ii) an unlimited amounton or after the Revolving Loan Maturity Date, so long as, be allocated entirely to the Commitments (as such term is defined in the case of this clause (ii), after giving pro forma effect to the Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent in its discretion (not to be unreasonably withheld, conditioned or delayedThree-Year Credit Facility). Such notice shall set forth (i) At the amount time of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of sending such notice, unless otherwise agreed to by the Company (in consultation with the Administrative Agent) and shall specify the time period within which each Lender is requested to respond (iii) whether such Incremental Term Loan Commitments are to which shall in no event be Term Commitments or commitments to make term loans with terms different less than ten Business Days from the Term Loans (“Other Term Loans”date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. The Administrative Agent shall notify the Company and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, the Company may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel. Notwithstanding the foregoing provisions of this Section 2.12(a), during the first 90 days following the Closing Date, the Company may invite Eligible Assignees to become Lenders under this Agreement in connection with a requested increase without first providing any Lender with the opportunity to increase its Commitment as provided above.
(b) The Borrower may seek Incremental Term Loan If the Aggregate Commitments from existing Lenders (each of which may be entitled to agree or decline to participate are increased in its sole discretion if so offered the opportunity to do so) and other Persons additional banksaccordance with this Section 2.12, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent Company shall reasonably specify to evidence determine the Incremental Term Loan Commitment effective date (the "Increase Effective Date") and the final allocation of such Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreementincrease. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each Company and the Lenders of the parties hereto hereby agrees that, upon the effectiveness final allocation of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of the other Lenders hereto effect such amendments to this Agreement increase and the other Loan Documents as may be necessary or appropriateIncrease Effective Date. As a condition precedent to such increase, in the reasonable opinion of Company shall deliver to the Administrative Agent and a certificate of the Borrower, to effectuate Company dated as of the provisions Increase Effective Date signed by a Responsible Officer of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless Company (i) on certifying and attaching the date of resolutions adopted by the Company approving or consenting to such effectivenessincrease, the conditions set forth in Section 4.02 shall be satisfied (or waived) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinionscertifying that, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefromsuch increase, (A) no Event of Default shall have occurred and be continuing or would exist after giving effect thereto and (B) the representations and warranties contained herein in Article V and in the other Loan Documents shall be are true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that dateIncrease Effective Date, except to the extent that such representations and warranties specifically relate refer to an earlier date, in which case such representations and warranties shall have been they are true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided , and except that, notwithstanding anything to the contrary in for purposes of this Section 2.15 or in any other provision of any Loan Document2.12, if the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x1) the representation and warranty that contained in Section 5.08(a) shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively, and (2) the reference to the Closing Date in Section 5.05(b) and Section 5.08(b) shall be deemed to refer to the Increase Effective Date and (B) no Default exists. The Company shall prepay any Committed Loans incurred outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Committed Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Commitments under this Section 2.12.
(c) In the event of an increase in Commitments pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicableSection 2.12, the Administrative Agent provisions of this Section 2.12 shall have received a Notice of Borrowing govern any conflicts with provisions in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of LoanSections 2.11 or 10.01.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (McKesson Corp)