Increase in Commitments. (a) Any Borrower may at any time after the Closing Date, deliver to the Administrative Agent a request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date. (b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase. (c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations. (d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
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Increase in Commitments. (a) Any Borrower may Upon notice to the Administrative Agent (which shall promptly notify the Lenders), at any time after the Closing Restatement Effective Date, deliver to the Administrative Agent a request Company may request: (a “Facilities Increase Request”i) to incur on one or more occasions, additional Loans (“Term Commitments in respect of an Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be Term Loan Tranche in an amount not to exceed an aggregate principal amount of Additional Loans such that, the Term B Loan Permitted Amount; provided that (A) after giving effect to the incurrence of any such Additional LoansIndebtedness, the Consolidated Senior Leverage Ratio and Consolidated Total Secured Leverage Ratio, each calculated on a Pro Forma Basis (and specifically giving effect to the repayment of any Total Secured Indebtedness effected on or prior to such date), would be no greater than 2.75 to 1.00 as of the Applicable Determination Date (giving effect most recently completed period of four consecutive fiscal quarters ending prior to the incurrence of such Additional Loans Indebtedness, such compliance to be determined on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery basis of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have financial information most recently delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect and the Lenders (either pursuant to Section 6.01(a) or Section 6.01(b) or in any subsequent delivery of financial information by the Company to the Administrative Agent prior to such Facilities Increase, incurrence of Indebtedness) as though such incurrence of Indebtedness (and the repayment of any Total Secured Indebtedness effected on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 or prior to such date) had been consummated as of the most recent Fiscal Quarter first day of the fiscal period covered thereby and (B) the proceeds thereof shall be used in connection with the Transaction; (ii) on one or more occasions, additional Term Commitments in respect of Term Loans having the same terms (including pricing) as the existing Term A-2 Loans (the “Specified Term A-2 Loans”) in an amount not to which exceed the Borrowers were required Specified Term A-2 Loan Permitted Amount, provided that (A) such Term Commitments may be established no later than 10 Business Days after the Restatement Effective Date and (B) the proceeds thereof shall be used solely to deliver financial statements pursuant pay obligations under the Metavante Credit Agreement; (iii) on one or more occasions, additional Revolving Credit Commitments having the same terms (including pricing and currency) as the existing 2014 Multicurrency Revolving Credit Commitments or the existing 2014 US Dollar Revolving Credit Commitments, provided that (A) such Revolving Credit Commitments may be established no later than 10 Business Days after the Restatement Effective Date and (B) the proceeds thereof shall be used in accordance with Section 6.11; and (iv) on up to Section 7.01ten occasions, other additional Term Commitments and/or additional Revolving Credit Commitments; both before and provided that after giving effect to any such Facilities Increaseaddition, no Default or Event the aggregate amount of Default all additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this clause (iv) shall have occurred and be continuing; not exceed $750,000,000. Any such Facilities Increase addition under this Section 2.16(a) shall be in a minimum an aggregate amount of $5.0 million; and 5,000,000 or any whole multiple of $1,000,000 in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Dateexcess thereof.
(b) The Administrative Agent shall promptly notify each Lender Any loans made in respect of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender mayadditional Term Commitments (the “Additional Term Loans”) may be made, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to at the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part option of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive Company, either by (i) notice from increasing the Term Loans with the same terms (including pricing) as the existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and Term Loans, or (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen creating a new tranche of terms loans (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional LenderTerm Loan Tranche”); provided that, that any Additional Term Loan Tranche (1) shall not mature prior to the stated Maturity Date applicable to the latest maturing Tranche of Term Loans on the date of incurrence of such commitments Additional Term Loans and (2) the Weighted Average Life to Maturity of any Additional Term Loan Tranche shall be on terms no better less than those offered the Weighted Average Life to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (Maturity of such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment latest maturing Tranche of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities IncreaseTerm Loans.
(c) Any such Facilities Increase shall become effective on a date agreed by additional Revolving Credit Commitments (the applicable Borrower and “Additional Revolving Credit Commitments”) may be made, at the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction option of the conditions precedent set forth in Section 5.02; provided thatCompany, if by either (i) increasing the proceeds of US Dollar Revolving Credit Commitments or the Multicurrency Revolving Credit Commitments with the same terms (including pricing and currency) as the existing 2014 US Dollar Revolving Credit Commitments or 2014 Multicurrency Revolving Credit Commitments, as the case may be or (ii) creating a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as new tranche of the date Multicurrency Revolving Credit Facility with the Additional Revolving Credit Commitments of Lenders willing to fund in an Additional Alternative Currency pursuant to which Multicurrency Revolving Credit Loans under such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representationsnew tranche may be denominated in such Additional Alternative Currency.
(d) The Facilities Increase At the time of the sending of notice requesting additional Term Commitments and/or additional Revolving Credit Commitments, the Company (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 less than ten 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 provide an additional Term Commitment or Revolving Credit Commitment, as applicable, and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase (which shall be evidenced calculated on the basis of the amount of the funded and unfunded exposure under all the Facilities held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to provide an amendment additional Term Commitment or supplement Revolving Credit Commitment, as applicable. 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 Term Lenders or Revolving Credit Lenders, as applicable, pursuant to a commitment increase and joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel (each, a “Commitment Increase and Joinder Agreement”).
(e) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Agreement executed by the Borrowers (and consented to by all other Loan Parties)Section 2.16, the Administrative Agent and the Company shall determine the effective date (the “Additional Commitments Effective Date”) and the final allocation of such addition. The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such addition and the Additional Commitments Effective Date. As a condition precedent to such addition, the Company shall deliver to the Administrative Agent a certificate of the Company dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Company certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article 5 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 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(e), the representations and warranties contained in Section 5.05(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (ii) no Default exists before or after giving effect to such addition.
(f) On each Additional Commitments Effective Date, (i) each Lender or Eligible Assignee which is providing such Facilities Increase an additional Term Commitment (each such amendment or supplement, A) shall become a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall Term Lender” for all purposes beof this Agreement and the other Loan Documents, and (B) shall make an Additional Term Loan to the Company 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 (except that the interest rate, amortization payment amounts and maturity date applicable to any Additional Term Loan under an Additional Term Loan Tranche may be as agreed by the Company and the applicable Lenders providing the additional Term Commitments; provided that such amortization payment amounts and maturity date shall be in accordance with the requirements of Section 2.16(b)) and (ii) each Lender or Eligible Assignee which is providing an additional 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 that is increased by (in the case of an existing Revolving Credit Lender) or equal to (in the case of a new Revolving Credit Lender) such additional Revolving Credit Commitment.
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Sources: Amendment and Restatement Agreement (Fidelity National Information Services, Inc.)
Increase in Commitments. (a) Any Borrower may at any time after the Closing Date, deliver by written notice to the Administrative Agent a request elect to add one or more incremental term loan facilities hereunder (a each, an “Facilities Increase RequestIncremental Term Facility”; the commitments thereunder are referred to as “Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”) and/or increase the Revolving Commitments (any such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to incur additional Loans (as “Additional Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); any such increase or incremental incurrence being a the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Facilities IncreaseIncremental Facilities”); provided that the (1) total aggregate amount for all such Incremental Facilities (assuming, for the purposes of determining each of clauses (A) and (B), in the case of any Incremental Revolving Increase, the full amount thereof is drawn) shall not (as of any date of incurrence thereof) exceed the sum of (A) $450,000,000 and (B) an amount such that: Any , subject to Section 1.03(e), at the time of such Facilities Increase 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 an 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 to exceed an aggregate be less than a minimum principal amount of Additional Loans such that$25,000,000 or, after giving effect if less, the remaining amount permitted pursuant to the incurrence of foregoing clause (1). Each such Additional Loansnotice shall specify (x) the date (each, an “Increase Effective Date”) on which such Borrower proposes that the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase Incremental Facility shall be effective earlier effective, which shall be a date not less than twenty (20) five Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; date on which such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have notice is delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (Ay) the Applicable Margin for identity of each Eligible Assignee to whom such Closing Date Loans shall Borrower proposes any portion of such Incremental Facility be increased to allocated and the extent necessary so that the Yield for amounts of such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans)allocations; provided that any existing Lender approached to the extent any more favorable term is added for the benefit provide all or a portion of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (Incremental Facility may elect or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender maydecline, in its sole discretion, commit to participate in provide such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part portion of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities IncreaseIncremental Facility.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
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Increase in Commitments. (a) Any Borrower may at any time after the Closing Date, deliver Upon notice to the Administrative Agent a request (which shall promptly notify the Lenders), the Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments (each, a “Facilities Increase RequestCommitment Increase”) pursuant to incur additional Loans (“Additional Loans”any Commitment Increase and Joinder Agreement; provided that after giving effect to any such increase 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 not exceed the sum of (i) after the Second Amendment Effective Date, $375,000,000, (ii) (A) in the case of any Commitment Increase that effectively extends the maturity of any Tranche of the existing Term Loans or incremental incurrence being a “Facilities Increase”Revolving Credit Facility, an amount equal to such Term Loan or Revolving Credit Facility replaced with such Commitment Increase and (B) in the case of any Commitment Increase that effectively replaces any Revolving Credit Commitment terminated under Section 3.09 or Section 11.01(f); provided that: Any such Facilities Increase shall be in , an amount equal to the portion of the relevant terminated Revolving Credit Commitments, (iii) the amount of any voluntary prepayments of the Term Loans or any permanent reduction of the Revolving Credit Commitments (to the extent not financed with the proceeds of long-term Indebtedness), (iv) an amount not to exceed in excess of an aggregate principal amount of Additional Loans such that, after giving effect to the relevant Commitment Increase (A) if such Commitment Increase is secured by a Lien on the Collateral that is pari passu with the Lien securing the Facilities, the First Lien Leverage Ratio does not exceed 3.50:1.00, or (B) if such Commitment Increase is secured by a Lien on the Collateral that is junior to the Lien securing the Facilities, the Senior Secured Leverage Ratio does not exceed 4.00:1.00; provided that for purposes of calculating such First Lien Leverage Ratio or Senior Secured Leverage Ratio under this clause (iv) (1) the proceeds from any such Commitment Increase shall not be netted from Indebtedness and (2) any Revolving Credit Commitments then being incurred or established shall be assumed to be fully drawn and (v) with respect to the Additional Term A Loans and Additional Revolving Credit Commitments (each as defined in the Second Amendment) established under the Second Amendment on the Second Amendment Effective Date, an aggregate amount equal to $173,150,000. It is understood and agreed that, unless the Borrower otherwise notifies the Administrative Agent, if all or any portion of any Commitment Increase or Incremental Equivalent Debt would be permitted under clause (iv) of this clause (a) on the applicable date of determination, such Commitment Increase or Incremental Equivalent Debt (or the relevant portion thereof) shall be deemed to have been incurred in reliance on clause (iv) of this clause (a) prior to the utilization of any amount available under clause (i) of this clause(a). Each such addition under this Section 2.16(a). shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
(b) Any loans made in respect of any such additional Term Commitments (the “Additional Term Loans”) may be made, at the option of the Borrower, either by (i) increasing the Term Loans with the same terms (including pricing) as the existing Term Loans, or (ii) creating a new tranche of terms loans (an “Additional Term Loan Tranche”); provided that any Additional Term Loan Tranche (A) shall not mature prior to the stated Maturity Date applicable to the latest maturing Tranche of Term Loans on the date of incurrence of such Additional Term Loans and (B) the Weighted Average Life to Maturity of any Additional Term Loan Tranche shall be no less than the Weighted Average Life to Maturity of such latest maturing Tranche of Term Loans, .
(c) Any such additional Revolving Credit Commitments (the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis “Additional Revolving Credit Commitments”) may be made by increasing the Revolving Credit Commitments with the same terms (including pricing) as any existing Revolving Credit Commitments of the Applicable Determination Date latest maturing Tranche of Revolving Credit Commitments.
(giving effect d) The Borrower may invite any Lender or any additional Eligible Assignees to the incurrence of such Additional Loans on become Term Lenders or Revolving Credit Lenders, as applicable, pursuant to a Pro Forma Basis commitment increase and joinder agreement in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) form and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered substance reasonably satisfactory to the Administrative Agent (each, a Compliance Certificate demonstrating that“Commitment Increase and Joinder Agreement”). No Lender will be obligated to provide all or any portion of any Commitment Increase 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 Commitment Increase.
(e) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, upon giving effect the Administrative Agent and the Borrower shall determine the effective date (the “Additional Commitments Effective Date”) and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower and the lenders providing such Commitment Increase of the final allocation thereof and the Additional Commitments Effective Date. As a condition precedent to such Facilities Increaseaddition, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to such increase, (i)(A) the representations and warranties contained in Article 5 and the other Loan Documents are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the Additional Commitments Effective Date, except to the extent that such Facilities Increaserepresentations 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 (B) no Default or Event of Default shall have occurred exists before or after giving effect to such addition; provided that notwithstanding anything to the contrary in this Section 2.16 or in any other provisions of any Loan Document, if the proceeds of any Commitment Increase are intended to be applied to finance an acquisition or other Investment, in each case permitted hereunder, and the lenders providing such Commitment Increase so agree, such requirements in clauses (i)(A) and (B) of this Section 2.16(e) may be continuing; such Facilities Increase subject to customary “SunGard” or other applicable “certain funds” conditionality provisions and “specified representations” provisions and (ii) the Borrower shall be in a minimum amount Pro Forma Compliance with all of $5.0 million; the covenants set forth in Section 7.10, determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders (either pursuant to Section 6.01 or Section 6.01(b) or in any subsequent delivery of financial information by the Borrower to the Administrative Agent prior to such time), assuming that the applicable additional Commitments were fully drawn on the first day of the fiscal period covered thereby (and the proceeds from such additional Commitments shall not be netted from Indebtedness in the event calculation of the applicable leverage ratio test).
(f) On each Additional Commitments Effective Date, (i) each Lender or Eligible Assignee which is providing an additional Term Commitment (A) shall become a “Term Lender” for all purposes of this Agreement and the other Loan Documents, and (B) shall make an Additional Term Loan to the Borrower in a principal amount equal to such additional Term Commitment, and such Additional 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 additional 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 that is increased by (in the Yield for case of an existing Revolving Credit Lender) or equal to (in the case of a new Revolving Credit Lender) such additional Revolving Credit Commitment.
(g) The interest rate applicable to any Additional Term Loans will be determined by the Borrower and the lenders providing such Additional Term Loans; provided that with respect to any Commitment Increase in respect of the Term B Facility that is higher than pari passu with the Yield for existing Term B Facility in right of payment and with respect to security incurred in the first 18 months after the Closing Date Loans that are LIBOR Loans for which the initial ”yield” on such Commitment Increase exceeds the “yield” at such time on the Term B Facility by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans on the Term B Facility shall be increased to the extent necessary so that the Yield for such Closing Date Loans “yield” applicable to the Term B Facility is equal to the Yield for “yield” on such Additional Loans Commitment Increase minus 50 basis pointspoint (the “MFN Provision”). For purposes of the MFN Provision, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans “yield” shall be increased reasonably determined by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing Borrower; provided that in determining the applicable yield: (w) original issue discount or upfront fees paid by the Borrower in connection with such Facilities Commitment Increase or the existing Term B Facility (based on a four-year average life to maturity or, if lesser, remaining average life to maturity) shall be included, (x) any amendments to the Applicable Margin on the existing Term B Facility that became effective subsequent to the Closing Date but prior to the time of the addition of such Commitment Increase shall be included, (y) arrangement, structuring, underwriting fees and amendment fees paid or payable in connection with the existing Term B Facility or to one or more arrangers (or their Affiliates) in their capacities as such applicable to such Commitment Increase (each regardless of whether such amendment fees are paid to or supplementshared in whole or in part with any lender) and any other fees not paid generally to all lenders ratably shall be excluded and (z) if such Commitment Increase includes any “LIBOR” interest rate floor greater than that applicable to the existing Term B Facility and such floor is applicable to existing Term B Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase. The MFN Provision shall also apply to any loan issuance otherwise permitted in Section 7.03(h)(x), 7.03(z) and 7.03(aa) that is pari passu in right of payment with the Term B Facility and secured by a “Lien on the Collateral on a pari passu basis with the Liens securing the Term B Facility.
(h) Any Additional Term Loans may rank pari passu or junior with respect to security with the Facilities (and if applicable, subject to an Acceptable Intercreditor Agreement) and will not be guaranteed by an entity which is not (or does not become) a Loan Party.
(i) Except as otherwise specified above (including with respect to margin, pricing, maturity and/or fees), the other terms of any Additional Term Loan Tranche, if not substantially consistent with the terms of the applicable Term Facility, shall be reasonably satisfactory to the Administrative Agent (it being understood that terms not substantially consistent with the applicable Term Facility which are applicable only after the Latest Term Maturity Date are acceptable to the Administrative Agent).
(j) The proceeds of any Commitment Increase may be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of permitted acquisitions and other Investments and any other use not prohibited by this Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Fidelity National Financial, Inc.)
Increase in Commitments. (a) Any Borrower may at any time after the Closing Date, deliver to the Administrative Agent a request (a “Facilities Increase Request”) to incur borrow additional Loans (“Additional Loans”; any such increase or incremental incurrence borrowing being a “Facilities Increase”); provided that: :
(i) Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. .
(ii) no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; ;
(iii) such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; ;
(iv) prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; ;
(v) both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; ;
(vi) such Facilities Increase shall be in a minimum amount of $5.0 million; and and
(vii) in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such the Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and the
(Bviii) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans)Lenders; provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
Appears in 1 contract
Increase in Commitments. (a) Any Borrower Request for Increase. In addition to any Additional Letter of Credit Facilities pursuant to Section 2.03(o), the Company may at any from time after the Closing Dateto time, deliver request by notice to the Administrative Agent a request (x) an increase in the Multicurrency Revolving Credit Commitment or the US Dollar Revolving Credit Commitment (each, a “Facilities Increase RequestRevolving Credit Increase”) or (y) one or more term loan tranches, including any increase to incur additional Loans an existing term loan tranche (each, an “Additional LoansIncremental Term Loan”; any such increase or incremental incurrence being a each Incremental Term Loan and each Revolving Credit Increase, collectively, referred to as the “Facilities IncreaseIncremental Increases”); provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate that (i) the principal amount of Additional Loans for all such that, after giving effect to Incremental Increases in the incurrence of such Additional Loans, aggregate since the Second Amendment Effective Date (including the then requested Incremental Increase) shall not exceed $1,000,000,000 unless the pro forma Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both immediately before and after giving effect to the applicable Incremental Increase (calculated by assuming that the Revolving Credit Facility, including any such Facilities Revolving Credit Increase, no Default or Event of Default shall have occurred and be continuingis fully drawn at such time) is less than 2.75 to 1.00; (ii) any such Facilities request for an Incremental Increase shall be in a minimum amount of $5.0 million; and 100,000,000 (or a lesser amount in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then such amount represents all remaining availability under this Section); (iii) no Revolving Credit Increase shall (A) increase any L/C Issuer’s Fronting Exposure without the Applicable Margin for consent of such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis pointsL/C Issuer, and (B) increase the interest rate applicable Swing Line Sublimit without the consent of the Swing Line Lender, (C) increase the Foreign Borrower Sublimit or the Alternative Currency Sublimit without the consent of the Required Revolving Lenders or (D) increase the Alternative Currency Loan Sublimit without the consent of the Required Multicurrency Revolving Lenders; (iv) no Incremental Term Loan shall mature earlier than the Maturity Date for the Term Facility or have a weighted average life to any Closing Date Loans that are Fixed Rate Loans maturity shorter than the remaining weighted average life to maturity of the Term Facility; and (v) each Incremental Increase shall constitute Obligations hereunder and shall be increased by the amount calculated guaranteed pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity DateGuaranties.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
Appears in 1 contract
Sources: Credit Agreement (Urs Corp /New/)
Increase in Commitments. (aA) Any Borrower may at At any time after the Closing Date, deliver Administrative Agent may, from time to time at the request of Borrower, increase the Total Commitment by (i) admitting additional Lenders hereunder (each a SUBSEQUENT LENDER), or (ii) increasing the Commitment of any Lender (each an INCREASING LENDER), subject to the following conditions:
(I) each Subsequent Lender is a Lender, an Affiliate of a Lender or an Approved Fund;
(II) Borrower executes (A) a new Revolving Credit Note payable to the order of a Subsequent Lender, or (B) a replacement Revolving Credit Note payable to the order of an Increasing Lender;
(III) each Subsequent Lender executes and delivers to Administrative Agent a request Joinder Agreement in the form of EXHIBIT F;
(a “Facilities Increase Request”IV) each Increasing Lender executes and delivers to incur additional Loans Administrative Agent an increase certificate substantially in the form of EXHIBIT G;
(“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, V) after giving effect to the incurrence admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the Total Commitment does not exceed $100,000,000 less the amount of any previous reductions pursuant to SECTION 2.3;
(VI) each increase in the Total Commitment shall be in the amount of $10,000,000 or a greater integral multiple of $5,000,000;
(VII) no admission of any Subsequent Lender shall increase the Commitment of any existing Lender without the written consent of such Additional LoansLender;
(VIII) no Event of Default or Potential Default exists or would occur after giving effect to such increase;
(IX) no Lender shall be an Increasing Lender without the written consent of such Lender;
(X) the amount of all increases in the Total Commitment pursuant to this SECTION 2.7 shall not exceed $50,000,000 in the aggregate;
(XI) Borrower shall have (a) pledged to Administrative Agent, for the Consolidated Senior Leverage Ratio benefit of Lenders, a first priority Lien and Consolidated Total Leverage Ratiosecurity interest in one or more additional Collateral Properties to which all Lenders, in their sole discretion, have consented and (b) delivered to Administrative Agent each calculated on a Pro Forma Basis as of the Applicable Determination Date items listed in SECTION 7.1(C) related to such Collateral Properties and the applicable Subsidiary that holds title to such Collateral Properties, all acceptable to Required Lenders; and
(XII) after giving effect to the incurrence pledge of such Additional Loans on a Pro Forma Basis one or more additional Collateral Properties as required in the calculation of Consolidated Total DebtCLAUSE (XI) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increaseabove, the applicable Borrower shall have delivered to ratio of (a) the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and Total Commitment (after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated increase requested pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable this SECTION 2.7) to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender the aggregate Appraised Value of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true all Collateral Properties as of the date of such Facilities Increase request is less than or equal to certain specified representations and, to the extent applicable, acquisition agreement representationsseventy percent (70%).
(dB) The Facilities Increase After the admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, Administrative Agent shall promptly provide to each Lender and to Borrower a new SCHEDULE 2.1 to this Agreement. In the event that there are any Borrowings outstanding after giving effect to an increase in the Total Commitment pursuant to this SECTION 2.7, upon notice from Administrative Agent to each Lender, the amount of such Borrowings owing to each Lender shall be evidenced by an amendment or supplement appropriately adjusted to this Agreement executed by reflect the Borrowers (new Applicable Percentage of Lenders, and consented Borrower shall pay any losses associated therewith pursuant to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes beSECTION 4.5.
Appears in 1 contract
Increase in Commitments. (a) Any Borrower may at any time after the Closing Date, deliver by written notice to the Administrative Agent a request elect to add one or more incremental term loan facilities hereunder (a each, an “Facilities Increase RequestIncremental Term Facility”; the commitments thereunder are referred to as “Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”) and/or increase the Revolving Commitments (any such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to incur additional Loans (as “Additional Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); any such increase or incremental incurrence being a the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Facilities IncreaseIncremental Facilities”); provided that the (1) total aggregate amount for all such Incremental Facilities after the Amendment No. 2 Effective Date (assuming, for the purposes of determining each of clauses (A) and (B), in the case of any Incremental Revolving Increase, the full amount thereof is drawn) shall not (as of any date of incurrence thereof) exceed the sum of (A) $500,000,000 and (B) an amount such that: Any , subject to Section 1.03(e), at the time of such Facilities Increase 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 an 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 to exceed an aggregate be less than a minimum principal amount of Additional Loans such that$25,000,000 or, after giving effect if less, the remaining amount permitted pursuant to the incurrence of foregoing clause (1). Each such Additional Loansnotice shall specify (x) the date (each, an “Increase Effective Date”) on which such Borrower proposes that the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase Incremental Facility shall be effective earlier effective, which shall be a date not less than twenty (20) five Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; date on which such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have notice is delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (Ay) the Applicable Margin for identity of each Eligible Assignee to whom such Closing Date Loans shall Borrower proposes any portion of such Incremental Facility be increased to allocated and the extent necessary so that the Yield for amounts of such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans)allocations; provided that any existing Lender approached to the extent any more favorable term is added for the benefit provide all or a portion of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (Incremental Facility may elect or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender maydecline, in its sole discretion, commit to participate in provide such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part portion of the Facilities Increase Incremental Facility. Notwithstanding the foregoing, no such notice shall be allocated required in connection with the Incremental Revolving Increase provided pursuant to the Lenders providing such commitments on a pro rata basisAmendment No. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase1.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
Appears in 1 contract
Increase in Commitments. The Borrowers 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 Company by an agreement in writing entered into by the Borrowers, 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) Any Borrower the aggregate principal amount of all Incremental Facilities established under this Section 2.16 following the Closing Date shall not exceed the sum of:
(i) (A) Two Hundred Million Dollars ($200,000,000) minus (B) the initial aggregate principal amount of all Incremental Facilities previously incurred under clause (A); plus
(ii) an unlimited amount so long as, in the case of this clause (ii), after giving effect to the relevant Incremental Facility on a Pro Forma Basis, the Consolidated Secured Leverage Ratio does not exceed 2.75:1.00 (assuming the full amount of such Incremental 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 Company); provided that any Incremental Facility may be incurred under either sub-clauses (i) or sub-clause (ii) of this clause (a) as selected by the Company 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 Event of Default shall have occurred and be continuing at either the time of the request for such Incremental Facility or on the effective date of such 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 L▇▇▇▇▇’s sole and absolute discretion;
(d) each Incremental Facility shall be in an aggregate principal amount of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof; 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 Facility (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 Borrowers 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 Company, certifying that, before and after giving effect to such increase, (1) the representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if qualified by materiality or 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 (or, where consistent with local practice, counsel to the Administrative Agent), 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 Incremental Facility Commitment and its obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(h) in the case of an Incremental Term Facility, the Administrative Agent shall have determined in its reasonable discretion whether such Incremental Term Facility consists of a tranche A term loan (an “Incremental Tranche A Term Facility”) or a tranche B term loan (an “Incremental Tranche B Term Facility”);
(i) in the case of an Incremental Term Facility that is an Incremental Tranche A Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan 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 Revolving Loans and the Term A Loan and (2) the final maturity date of any then outstanding Incremental Tranche A Term Loan; and
(B) the Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term A Loan or any then outstanding Incremental Tranche A Term Loan;
(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 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 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 A Loan, shall be reasonably acceptable to the Administrative Agent;
(j) in the case of an Incremental Term Facility that is an Incremental Tranche B Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan 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 then outstanding Incremental Tranche B Term Loan;
(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 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 Term B Loan or any then outstanding Incremental Tranche B Term Facility by more than ½ of one percent (0.50%) per annum, then the Applicable Rate or fees payable by the Borrowers with respect to the Term B Loan and each then outstanding Incremental Tranche B Term Facility shall on the effective date of such Incremental Term Facility be increased to the extent necessary to cause the All-In-Yield on the Term B Loan and each then outstanding Incremental Tranche B Term Facility to be ½ of one percent (0.50%) 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 Borrowers) (the “MFN Protection”); provided that, notwithstanding anything to the contrary in the foregoing clause (C), the provisions of this clause (C) shall not apply to any Incremental Tranche B Term Facility established after the first twelve (12) months following the Closing DateDate in relation to the Term B Loan or any then existing Incremental Tranche B Term Facility;
(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, deliver 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 Company shall have delivered to the Administrative Agent a request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated Incremental Facility on a Pro Forma Basis as (without “netting” the cash proceeds of such Incremental Facility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Applicable Determination Date (giving effect Company 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 incurrence provisions of such Additional Loans on a Pro Forma Basis Section 1.10 in the calculation case of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be any Incremental Term Facility used to finance Permitted Acquisitions (or 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 acquisitions approved Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to Collateral Documents. The Lenders hereby authorize the Administrative Agent a Compliance Certificate demonstrating thatto enter into, upon giving effect to such Facilities Increase, on a Pro Forma Basis, and the Borrowers would be in compliance with Lenders agree that this Agreement and the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase other Loan Documents shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis pointsamended by, then (A) the Applicable Margin for such Closing Date Loans shall be increased Incremental Facility Amendments to the extent necessary so that the Yield for such Closing Date Loans is equal (and only to the Yield for such Additional Loans minus 50 basis points, and (Bextent) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders Administrative Agent deems necessary (including, without limitation, amendments to permit the loans under such Incremental Facility to be “fungible” (including for purposes of the Code) with any such other then-existing Loans under this Agreement) in order to establish Incremental Facilities on terms and conditions that would result consistent with and/or to effect the provisions of this Section 2.16. This Section 2.16 shall supersede any provisions in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that Section 10.01 to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) contrary. The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto as to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part effectiveness of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities IncreaseIncremental Facility Amendment.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
Appears in 1 contract
Sources: Credit Agreement (Celestica Inc)
Increase in Commitments. (a) Any Borrower may Upon notice to the Administrative Agent, at any time after the Closing Date, deliver to the Administrative Agent a eachthe Borrower may request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase Term Commitments or incremental incurrence being a “Facilities Increase”)Additional Revolving Credit Commitments; provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date that (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debti) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increaseaddition, no Default the aggregate amount of Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed (A) in the case of this Clause (A), on and after the EighthTenth Amendment Effective Date, $250,000,000 the greater of (i) $920,000,000 and (ii) 100% of Consolidated EBITDA of the Borrower Parties for the most recent Test Period for which financial statements have been (or Event are required to have been) furnished pursuant to Section 6.01 ended on or prior to the date of Default the incurrence of such Additional Term Commitments or Additional Revolving Credit Commitments, (the “General Incremental Availability”), plus (B) in the case of this Clause (B), on and after the Eighth Amendment Effective Date, $750,000,000 (the “Ratio Incremental Availability”)additional amounts to the extent that in the case of this clause (B) only the Senior NYDOCS01/1760806.13 Secured Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available, after giving Pro Forma Effect to any such Additional Term Commitments or Additional Revolving Credit Commitments (calculated as if such Additional Revolving Credit Commitments were fully drawn on the applicable test date), as applicable, shall have occurred not exceed 4.0:1.0, on the date of the closing date with respect thereto or, if the Borrower has made an LCT Election with respect thereto, on the LCT Test Date with respect thereto, 2.50:1.00 (such amounts, the “Ratio Incremental Availability”) (it being agreed that (I) the BorrowersBorrower may designate any such Additional Term Commitments and Additional Revolving Credit Commitments as being incurred pursuant to the General Incremental Availability or Ratio Incremental Availability in this sole discretion, and (II) so long as the all-in yield did not require a change to the interest rate margins pursuant to clause (vi) below when incurred, the BorrowersBorrower may re-designate any such Additional Term Commitments and Additional Revolving Credit Commitments (or corresponding Additional Term Loans or Additional Revolving Credit Loans, as applicable) originally designated to be continuing; incurred under the General Incremental Availability to be incurred under Ratio Incremental Availability if, at the time of such Facilities Increase re-designation, the BorrowersBorrower would be permitted to incur under this Section 2.14 the aggregate principal amount of such Indebtedness being so re-designated), (ii) any such addition shall be in a minimum an aggregate amount of $5.0 million; 50,000,000 or any whole multiple of $1,000,000 in excess thereof (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term Commitments and Additional Revolving Credit Commitments set forth in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis pointsclause (i) to this proviso), then (iii) (A) the Applicable Margin for such Closing Date final maturity date of any Additional Term Loans shall be increased to no earlier than the extent necessary so that the Yield latest Maturity Date for such Closing Date any then outstanding Term Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the final maturity date of any Additional Revolving Credit Loans shall be no earlier than the latest Maturity Date for any then outstanding Revolving Credit Commitments; provided that the amortization schedule with respect to any Additional Term Loans shall be determined by the BV Borrower and the Additional Term Lenders of such Additional Term Loans, (iv) the weighted average life to maturity of the Additional Term Loans shall be no shorter than the remaining weighted average life to maturity of the then-existing tranche of Term Loans with the latest Maturity Date, (v) the loans made pursuant to any Additional Term Loan Commitments may rank junior in right of security with the Term Loan Facility or may be unsecured, in which case such Additional Term Loan Commitments and corresponding loans will be established as a separate facility than the Facilities hereunder and (vi) solely with respect to any Additional Term Commitments and/or Additional Revolving Credit Commitmentsincurred less than six months after the Tenth Amendment Effective Date that utilize the Ratio Incremental Availability, the all-in yield (whether in the form of interest rate margins, original issue discount, upfront fees or, in the case of any Additional Term Commitments, a Eurodollar Rate floor greater than 0.75%, with such increased amount being equated to interest margin for purposes of determining any increase to the applicable interest margin under the Term Loan Facility) applicable to any Closing Date Loans that are Fixed Rate Loans shall such Additional Term Commitments and/or Additional Revolving Credit Commitments will be increased determined by the amount calculated pursuant to BorrowersBorrower and the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders lenders providing such Additional Loans Term Commitments and/or Additional Revolving Credit Commitments, but will not be more than those applicable 0.50% higher than the corresponding all-in yield (after giving effect to interest rate margins (including the Eurodollar Rate floor), original issue discount and upfront fees) for each then-existing tranche under the Term Loan Facility or Revolving Credit Facility, as applicable, respectively, unless the interest rate margins with respect to such existing Term Loan Facility are increased by an amount equal NYDOCS01/1760806.13 to the Closing Date Loans unless otherwise consented to by difference between the Required Lenders (including, without limitation, any such terms and conditions that would result all-in any payment of principal hereunder being applied on a greater than ratable basis yield with respect to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Term Commitments and/or Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower Revolving Credit Commitments and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth corresponding all-in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representationsyield on suchthe existing Term Loan Facility minus 0.50%.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
Appears in 1 contract
Sources: Credit Agreement (Sensata Technologies Holding PLC)
Increase in Commitments. (a) Any Borrower may at any time after the Closing Date, deliver by written notice to the Administrative Agent a request elect to add one or more incremental term loan facilities hereunder (a each, an “Facilities Increase RequestIncremental Term Facility”; the commitments thereunder are referred to as “Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”) and/or increase the Revolving Commitments (any such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to incur additional Loans (as “Additional Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); any such increase or incremental incurrence being a the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Facilities IncreaseIncremental Facilities”); provided that the (1) total aggregate amount for all such Incremental Facilities (assuming, for the purposes of determining each of clauses (A) and (B), in the case of any Incremental Revolving Increase, the full amount thereof is drawn) shall not (as of any date of incurrence thereof) exceed the sum of (A) $450,000,000 and (B) an amount such that: Any , subject to Section 1.03(e), at the time of such Facilities Increase 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 an 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 to exceed an aggregate be less than a minimum principal amount of Additional Loans such that$25,000,000 or, after giving effect if less, the remaining amount permitted pursuant to the incurrence of foregoing clause (1). Each such Additional Loansnotice shall specify (x) the date (each, an “Increase Effective Date”) on which such Borrower proposes that the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase Incremental Facility shall be effective earlier effective, which shall be a date not less than twenty (20) five Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; date on which such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have notice is delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (Ay) the Applicable Margin for identity of each Eligible Assignee to whom such Closing Date Loans shall Borrower proposes any portion of such Incremental Facility be increased to allocated and the extent necessary so that the Yield for amounts of such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans)allocations; provided that any existing Lender approached to the extent any more favorable term is added for the benefit provide all or a portion of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (Incremental Facility may elect or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender maydecline, in its sole discretion, commit to participate in provide such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part portion of the Facilities Increase Incremental Facility. Notwithstanding the foregoing, no such notice shall be allocated required in connection with the Incremental Revolving Increase provided pursuant to the Lenders providing such commitments on a pro rata basisAmendment No. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase1.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
Appears in 1 contract
Increase in Commitments. (a) Any 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 would 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, 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, Borrower may at any from time after to time request (i) additional Term Loans (the Closing “Incremental Term Loans” and the related commitments, the “Incremental Term Loan Commitments”) and/or (ii) additional revolving loans or, prior to the Revolving Credit Maturity Date, an increase to the existing Revolving Loans (the “Incremental Revolving Loans” (together with the Incremental Term Loans, the “Incremental Loans”) and, together with the related commitments, the “Incremental Revolving Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”) up to an aggregate principal amount (other than Replacement Term Loans) not to exceed the sum of (A) $800,000,000 and (B) an amount such that, after giving pro forma effect to such Incremental Loans (and, with respect to any Incremental Revolving Loan Commitments, the full utilization of all such Incremental Revolving Loan 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 its Subsidiaries; provided that (i) any Incremental Term Loans shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and (ii) any Incremental Revolving Loan Commitments shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided, further, that any existing Lender approached to provide all or a 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 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 (x) the Incremental Term Loans shall not have a final maturity date 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, (y) 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 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 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 to any other documentation, in each case on terms and documentation satisfactory to the Administrative Agent 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; provided 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, 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 Revolving Lender and the Administrative Agent, and to any other documentation, in each case on terms and documentation satisfactory to the Administrative Agent and the Lead Arrangers. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.▇▇.▇▇ addition, unless otherwise specifically provided herein, all references in the Loan Documents to Term Loans, Revolving Loans, or such other Class of Term 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 2.21, the Administrative Agent and Borrower shall determine the effective date (each, an “Incremental Facility Effective Date”) and the final allocation of such increase. The Administrative Agent shall 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 request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount certificate of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis Borrower dated as of the Applicable Determination Incremental Facility Effective Date signed by a Financial Officer of Borrower (giving effect to i) certifying and attaching (A) the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 resolutions adopted by Borrower approving or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect consenting to such Facilities Increase, on increase and (B) a Pro Forma Basis, the Borrowers would be in certificate demonstrating pro forma compliance with the financial covenants Financial Covenant as set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both 2.21(a) and (ii) certifying that, before and after giving effect to any such Facilities Increaseincrease, (A) the representations and warranties set forth in Article III and the other Loan Documents shall be true and correct in all material respects on and as of the Incremental Facility Effective Date (unless expressly stated to relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (B) no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase 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 become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”)make Revolving Loans, subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are which will be used to finance a Limited Condition Transactionprepay the Revolving Loans of the other Revolving Lenders immediately prior to such Incremental Facility Effective Date, so that, after giving effect thereto, the Revolving Loans outstanding are held by the Revolving Lenders providing pro rata based on their Revolving Credit Commitments after giving effect to such Facilities Increase may agree Incremental Revolving Commitments. If there is a new borrowing of Revolving Loans on such Incremental Facility Effective Date, the Revolving Lenders after giving effect to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representationsIncremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.02.
(d) The Facilities Increase Borrower shall be evidenced by an amendment or supplement use the proceeds of any Incremental Term Loans and Incremental Revolving Loans for general corporate purposes (including to this Agreement executed by finance Permitted Acquisitions).
(e) This Section 2.21 shall supersede any provisions in Section 9.08 to the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes becontrary.
Appears in 1 contract
Increase in Commitments. (a) Any Borrower may at At any time after and from time to time prior to the Closing Maturity Date, deliver the Company may, by written notice to the Administrative Agent a request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify furnish to each Lender Lender), request that one or more Persons (which may include the then-existing Lenders) (A) offer to increase their Revolving Credit Commitments 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 Loan” and together with any Facilities Increase Request Revolving Credit Commitment Increases, a “Commitment Increase”) under this paragraph (a), it receives from any Borrower in connection with a proposed Facilities Increase. Each being understood that (x) if such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments offer is to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on by a pro rata basis. If the Administrative Agent does Person that is not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional already a Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 11.04(b) in the event of an assignment to such Person (such consent not to be unreasonably conditioned, withheld 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 accepted shall equal the lesser of (i) $10,000,000 or delayed(ii) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment the offered Commitment Increase. The minimum aggregate principal amount of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement any Commitment Increase shall be construed to obligate any Lender to participate in any Facilities Increase.
$10,000,000 (c) Any or such Facilities Increase shall become effective on a date 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 aggregate amount equal to the 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 Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject Administrative Agent agree as to the satisfaction amount of such Revolving Credit Commitments to be allocated to the conditions precedent set forth respective Persons making such offers and the fees (if any) to be payable by the Company in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transactionconnection therewith, the Lenders providing Company, any other applicable Borrower, such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties)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 Lenders providing such Facilities Increase procedures for reallocating any outstanding Revolving Credit Exposure (each such amendment or supplement, a “Facilities Increase Agreement”as applicable). For The Incremental Term Loans (a) shall rank pari passu in right of payment with the avoidance Revolving Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date (but may partially amortize prior to such date) and (c) shall be treated substantially the same hereunder as (and in any event no more favorably than) the Revolving Loans and the Term Loans; provided that (i) the terms and conditions applicable to any tranche of doubtIncremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (ii) the Incremental Term Loans may be priced differently (which pricing shall be deemed to include any upfront fees, upon closing original issue discount, arrangement fees and any similar fees in connection therewith) than the pricing applicable to the Revolving Loans and the Term Loans. Incremental Term Loans may be made hereunder pursuant to an amendment, restatement or amendment and restatement (an “Incremental Term Loan Amendment”) of a Facilities Increasethis Agreement and, new Lenders as appropriate, the other Loan Documents, executed by the Borrowers, each Lender participating in such Facilities tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Company and the Administrative Agent, to effect the provisions of this Section 2.09. Notwithstanding anything to the contrary 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 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 required to be paid by the Borrowers. No such increase shall be effective until such administration period has expired.
(b) Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this Section 2.09 unless on the proposed date of the effectiveness of such Commitment Increase (i) the Administrative Agent shall for all purposes have received a certificate dated such date and executed by a Financial Officer of the 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 documents from the Borrower consistent with those delivered on the Effective 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 (and any Loans thereunder). Nothing contained in this Section 2.09 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Sources: Credit Agreement (Schulman a Inc)
Increase in Commitments. (a) Any Borrower may Upon notice to the Administrative Agent (which shall promptly notify the Lenders), at any time after the Closing Effective Date, deliver to the Administrative Agent a Borrower may request (a “Facilities Increase Request”) to incur on one or more occasions, additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”)Term Commitments and/or additional Revolving Credit Commitments; provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, that (A) after giving effect to the incurrence of any such Additional Loansadditional Indebtedness, the Consolidated Senior Borrower would be in compliance (the “Additional Commitments Compliance Condition”) with the covenant set forth in Section 7.09(b) and the Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis would be no greater than 2.00:1.00 as of the Applicable Determination Date (giving effect most recently completed period of four consecutive fiscal quarters ending prior to the incurrence of such Additional Loans Indebtedness, such compliance to be determined on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery basis of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have financial information most recently delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, and the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements Lenders pursuant to Section 7.01; both before 6.01(a) or Section 6.01(b) as if Loans had been made in an aggregate principal amount equal to the full amount of such additional Commitments of the first day of the fiscal period covered thereby and (B) after giving effect to any such Facilities Increaseaddition, no Default or Event the aggregate amount of Default all additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.14) shall have occurred and be continuing; not exceed $250,000,000. Any such Facilities Increase addition under this Section 2.14(a) shall be in a minimum an aggregate amount of $5.0 million; and 50,000,000 or any whole multiple of $5,000,000 in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Dateexcess thereof.
(b) The Administrative Agent shall promptly notify each Lender Any loans made in respect of any Facilities Increase Request it receives from such additional Term Commitments (the “Additional Term Loans”) may be made, at the option of the Borrower, either by (i) increasing the Term B Loans with the same terms (including pricing) as the existing Term B Loans, or (ii) creating a new tranche of term loans (an “Additional Term Loan Tranche”). Any Additional Term Loan Tranche shall not mature prior to the stated Maturity Date applicable to the latest maturing Tranche of Term Loans on the date of incurrence of such Additional Term Loans. The Weighted Average Life to Maturity of any Additional Term Loan Tranche shall be no less than the Weighted Average Life to Maturity of such latest maturing Tranche of Term Loans. The applicable yield relating to any Additional Term Loan Tranche shall not be greater than the Applicable Margin for the existing Term B Loans plus 0.50% per annum unless the Applicable Margin for the existing Term B Loans are increased so that the yield applicable to the applicable Additional Term Loan Tranche does not exceed the Applicable Margin for the existing Term B Loans by more than 0.50% per annum; provided that in determining the yield applicable to the existing Term B Loans and the Additional Term Loans, (A) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the existing Term B Loans or the Additional Term Loans in connection the syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if less, the remaining life to maturity of the Additional Term Loans), (B) customary arrangement or commitment fees payable to the joint bookrunners (or their affiliates) or to one or more arrangers (or their affiliates) of the Additional Term Loans shall be excluded and (C) if the Additional Term Loan Tranche includes a proposed Facilities Increase. Each “LIBOR floor”, such Lender may, amount shall be converted into an interest margin (in its sole discretion, commit to participate in such Facilities Increase an amount reasonably determined by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory ) for purposes of determining any increase to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increaseyield.
(c) Any such Facilities Increase additional Revolving Credit Commitments (the “Additional Revolving Credit Commitments”) shall become effective on a date agreed be made by increasing the applicable Borrower and Revolving Credit Commitments with the Lenders providing such Facilities Increase same terms (a “Facilities Increase Date”), subject to including pricing) as the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representationsexisting Revolving Credit Commitments.
(d) The Facilities Increase To achieve the full amount of a requested increase, the Borrower (i) shall request additional Term Commitments and/or Revolving Commitments from the Lenders and (ii) may, at its option, at the same time or thereafter, invite additional Eligible Assignees to become Term Lenders or Revolving Credit Lenders, as applicable, in each case, pursuant to a commitment increase and joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel. At the time of the sending of notice requesting additional Term Commitments and/or additional Revolving Credit Commitments, 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 less than ten 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 provide an additional Term Commitment or Revolving Credit Commitment, as applicable, and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase (which shall be evidenced calculated on the basis of the amount of the funded and unfunded exposure under all the Facilities held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to provide an amendment additional Term Commitment or supplement Revolving Credit Commitment, as applicable. The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder.
(e) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Agreement executed by the Borrowers (and consented to by all other Loan Parties)Section 2.14, the Administrative Agent and the Borrower shall determine the effective date (the “Additional Commitments Effective Date”) and the final allocation of such addition. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such addition and the Additional Commitments Effective Date. As condition precedents to such addition, (i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article 5 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 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 2.14(e), the representations and warranties contained in Section 5.05(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (B) no Default exists before or after giving effect to such addition and (C) compliance with the Additional Commitments Compliance Condition and (ii) all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders shall have been paid.
(f) On each Additional Commitments Effective Date, (i) each Lender or Eligible Assignee which is providing such Facilities Increase an additional Term Commitment (each such amendment or supplement, A) shall become a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall Term Lender” for all purposes beof this Agreement and the other Loan Documents, and (B) shall make an Additional Term Loan to the 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 (except that the interest rate, amortization payment amounts and maturity date applicable to any Additional Term Loan under an Additional Term Loan Tranche may be as agreed by the Borrower and the applicable Lenders providing the additional Term Commitments; provided that such amortization payment amounts and maturity date shall be in accordance with the requirements of Section 2.14(b)) and (ii) each Lender or Eligible Assignee which is providing an additional 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 that is increased by (in the case of an existing Revolving Credit Lender) or equal to (in the case of a new Revolving Credit Lender) such additional Revolving Credit Commitment.
Appears in 1 contract
Sources: Credit Agreement (Lender Processing Services, Inc.)
Increase in Commitments. (a) Any Borrower The Borrower, may by written notice to Agent at any time after the Closing Date and prior to the Revolving Termination Date, request on one or more occasions to increase the amount of the Revolving Loan by obtaining one or more Incremental Revolving Loan Commitments, in an aggregate principal amount, for all such increases after the Closing Date taken together, not to exceed $100,000,000, from one or more Incremental Revolving Lenders, which may include any existing Lender (which shall be entitled to agree or decline to participate in its sole discretion) without Lenders’ consent; provided, however, that each Incremental Revolving Lender, if not already a Lender hereunder, shall be subject to the approval of Agent, the Letter of Credit Issuer, and the Swingline Lender, in each case, in their respective reasonable discretion, which such approval not to be unreasonably withheld, conditioned or delayed. Such notice shall set forth (i) the amount of the Incremental Revolving Loan Commitment being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000, and (ii) the date on which such Incremental Revolving Loan Commitment is requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice); provided that (A) no Commitment of any existing Lender may be increased without the written consent of such Lender, (B) no Default or Event of Default exists immediately before or after giving effect to such increase; (C) the Borrower shall be in compliance with the covenants set forth in Section 7.12 hereof, calculated on a pro forma basis immediately before or after giving effect to such increase, (D) the Facility Parties shall deliver to the Administrative Agent a request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any on or before the effective date of such increase or incremental incurrence being the following documents in a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request form reasonably acceptable to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions : (1) certifications of their corporate or other acquisitions company secretaries with attached resolutions certifying that the Incremental Revolving Loan Commitments have been approved by such Facility Parties, and (2) an opinion of counsel addressed to the Required Lenders) Administrative Agent and related closing coststhe Lenders addressing the authorization and execution of the Loan Documents by, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increaseenforceability of the Loan Documents against, the applicable Borrower Facility Parties, and (E) with respect to an Incremental Revolving Lender that is not an existing Lender, such Incremental Revolving Lender shall have executed and delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect joinder to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant that is reasonably satisfactory to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to (and upon the BVI Borrowereffectiveness of such joinder, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase Incremental Revolving Lender shall be allocated to the Lenders providing such commitments on a pro rata basis“Lender” hereunder for all purposes. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments All Incremental Revolving Loan Commitments shall be based on the terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representationsfor Revolving Loans.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
Appears in 1 contract
Sources: Revolving Asset Based Loan Agreement (Andersons, Inc.)
Increase in Commitments. (a) Any 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 would 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, 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, Borrower may from time to time (but only after the completion of the syndication of the Commitments and Loans (within the meaning of the Fee Letter) request additional term loans (the "INCREMENTAL TERM LOANS" and the related commitments, the "INCREMENTAL TERM LOAN COMMITMENTS") and/or additional revolving loans (the "INCREMENTAL REVOLVING LOANS" and the related commitments, the "INCREMENTAL REVOLVING LOAN COMMITMENTS") in an aggregate principal amount not to exceed $75,000,000; provided that any such increase shall be in an aggregate amount of $25,000,000 or any whole multiple of $1,000,000 in excess thereof; provided, further, that any existing Lender approached to provide all or a 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. 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, the 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 Collateral 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 (x) if the interest rate spreads relating to such new Incremental Term Loans exceed the Applicable Rate at any time after pricing level for the Closing 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 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, 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 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 to any other documentation, in each case on terms and documentation satisfactory to the Administrative Agent and the Lead Arranger. The Incremental Revolving Loans (A) shall rank pari passu in right of payment and right of security in respect of the Collateral with the Revolving Loans and (B) 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 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 commitments thereunder may not be terminated prior to the 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 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 Revolving Lender and the Administrative Agent, and to any other documentation, in each case on terms and documentation satisfactory to the Administrative Agent and the Lead Arranger. To the extent an Incremental Facility Amendment is entered into to increase the Revolving Credit Commitments with respect to an existing Class of Revolving Credit Commitments, then each of the Revolving Lenders of such Class having a Revolving Credit Commitment of such Class prior to such effective date of such Incremental Facility Amendment (the "PRE-INCREASE REVOLVING LENDERS OF SUCH CLASS" and the effective date of such Incremental Facility Amendment, the "INCREASE EFFECTIVE DATE") shall 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 shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans of 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 Revolving Lenders of such Class 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, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.21.
(b) If any Incremental Term Loan Commitments or Incremental Revolving Loan Commitments are made in accordance with this Section 2.21, the Administrative Agent and Borrower shall determine the effective date (each, an "INCREMENTAL FACILITY EFFECTIVE DATE") and the final allocation of such increase. The Administrative Agent shall 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 request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount certificate of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis Borrower dated as of the Applicable Determination Incremental Facility Effective Date signed by a Financial Officer of Borrower (giving effect to i) certifying and attaching (A) the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 resolutions adopted by Borrower approving or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect consenting to such Facilities Increase, on increase and (B) a Pro Forma Basis, the Borrowers would be in certificate demonstrating pro forma compliance with the financial covenants Financial Covenants as set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both 2.21(a) and (ii) certifying that, before and after giving effect to any such Facilities Increaseincrease, (A) the representations and warranties set forth in Article III and the other Loan Documents shall be true and correct in all material respects on and as of the Incremental Facility Effective Date (unless expressly stated to relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (B) no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase Borrower shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if use the proceeds of a Facilities Increase are used any Incremental Term Loans and Incremental Revolving Loans for general corporate purposes (including to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representationsPermitted Acquisitions).
(d) The Facilities Increase This Section 2.21 shall be evidenced by an amendment or supplement supersede any provisions in Section 9.08 to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes becontrary.
Appears in 1 contract
Increase in Commitments. (a) Any Borrower may at any time after the Closing Date, deliver by written notice to the Administrative Agent a request elect to add one or more incremental term loan facilities hereunder (a each, an “Facilities Increase RequestIncremental Term Facility”; the commitments thereunder are referred to as “Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”) and/or increase the Revolving Commitments (any such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to incur additional Loans (as “Additional Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); any such increase or incremental incurrence being a the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Facilities IncreaseIncremental Facilities”); provided that the (1) total aggregate amount for all such Incremental Facilities after the Amendment No. 2 Effective Date (assuming, for the purposes of determining each of clauses (A) and (B), in the case of any Incremental Revolving Increase, the full amount thereof is drawn) shall not (as of any date of incurrence thereof) exceed the sum of (A) $450,000,000500,000,000 and (B) an amount such that: Any , subject to Section 1.03(e), at the time of such Facilities Increase 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 an 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 to exceed an aggregate be less than a minimum principal amount of Additional Loans such that$25,000,000 or, after giving effect if less, the remaining amount permitted pursuant to the incurrence of foregoing clause (1). Each such Additional Loansnotice shall specify (x) the date (each, an “Increase Effective Date”) on which such Borrower proposes that the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase Incremental Facility shall be effective earlier effective, which shall be a date not less than twenty (20) five Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; date on which such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have notice is delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (Ay) the Applicable Margin for identity of each Eligible Assignee to whom such Closing Date Loans shall Borrower proposes any portion of such Incremental Facility be increased to allocated and the extent necessary so that the Yield for amounts of such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans)allocations; provided that any existing Lender approached to the extent any more favorable term is added for the benefit provide all or a portion of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (Incremental Facility may elect or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender maydecline, in its sole discretion, commit to participate in provide such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part portion of the Facilities Increase Incremental Facility. Notwithstanding the foregoing, no such notice shall be allocated required in connection with the Incremental Revolving Increase provided pursuant to the Lenders providing such commitments on a pro rata basisAmendment No. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase1.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
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Increase in Commitments. (a) Any The Borrower may at any time after the Closing Date, deliver by written notice to the Administrative Agent a request elect to add one or more incremental term loan facilities hereunder (a each, an “Facilities Increase RequestIncremental Term Facility”) ; the commitments thereunder are referred to incur additional Loans (as “Additional Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”; any such increase or incremental incurrence being a the Incremental Term Facilities are collectively referred to as “Facilities IncreaseIncremental Facilities”); provided that: Any that the total aggregate amount for all such Incremental Facilities Increase shall be in 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 not equal to exceed the sum of all voluntary prepayments of Term Loans made pursuant to Section 2.08(a), plus (z) an aggregate principal additional unlimited amount of Additional Loans such thatso long as, after giving effect to the incurrence of such Additional LoansIncremental Facility, the Consolidated Senior Leverage Ratio and Consolidated Total 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), (y) and/or (z) in its sole discretion (collectively, the “Incremental Cap”); provided, further, that (1) if 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 maximum amount available of Incremental Facilities (or portion of Incremental Facilities) to be 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 Applicable Determination Date time of such election; provided, that upon delivery of any financial statements pursuant to Section 6.01 (giving effect and the corresponding Compliance Certificate pursuant to Section 6.01(c)) following the initial incurrence of such Additional Loans Incremental Facilities under clauses (x) or (y) of this definition, if such Incremental Facilities could, based on a Pro Forma Basis in any such financial statements (and the calculation corresponding Compliance Certificate), have been incurred under clause (z) of Consolidated Total Debtthis definition, then such Incremental Facilities shall automatically be reclassified as incurred under clause (z) would not respectively exceed 4.30:1.00 or 5.00:1.00above. no such Facilities Increase Each Class of Incremental Facility incurred under this Section 2.13 shall be effective earlier in an aggregate principal amount that is not less than twenty $10,000,000. Each such notice shall specify (20x) the date (each, an “Increase Effective Date”) on which the Borrower proposes that the Incremental Facility shall be effective, which shall be a date not less than five (5) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; date on which such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have notice is delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (Ay) the Applicable Margin for identity of each Eligible Assignee to whom the Borrower proposes any portion of such Closing Date Loans shall Incremental Facility be increased to allocated and the extent necessary so that the Yield for amounts of such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans)allocations; provided that any existing Lender approached to the extent any more favorable term is added for the benefit provide all or a portion of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (Incremental Facility may elect or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender maydecline, in its sole discretion, commit to participate in provide such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part portion of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities IncreaseIncremental Facility.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
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Increase in Commitments. (a) Any 2.7.1. Borrower may at any time after the Closing Dateby written notice to Administrative Agent (each, deliver an “Increase Notice”), seek an increase to the Administrative Agent a request existing (a i) Term Loan Commitment (each an “Facilities Increase RequestIncremental Term Loan Commitment”, and each Term Loan provided thereunder in accordance with the terms and conditions of this Section 2.7.1, an “Incremental Term Loan”) to incur or (ii) Revolving Commitment (each an “Incremental Revolving Loan Commitment”, and each additional Loans (Revolving Loan provided thereunder in accordance with the terms of conditions of this Section 2.7.1, an “Additional LoansIncremental Revolving Loan”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in ) 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 exceed an aggregate principal amount the Revolving Loan Commitment), so long as, on a pro forma basis on the date of Additional Loans such thatincurrence, immediately after giving effect to the incurrence of any such Additional Loans, Incremental Loan Commitment (assuming the Consolidated Senior Leverage Ratio full amount of any such concurrently established Incremental Revolving Commitment is drawn) and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (after giving effect to any transactions consummated in connection therewith, (x) the incurrence Total Debt to EBITDA Ratio for 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 equal to or less than the 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 has received financial statements pursuant to Section 10.1.2. Administrative Agent shall promptly deliver a copy of such Additional Loans 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 Commitment, as applicable, and (ii) the date on a Pro Forma Basis in which the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Incremental Loan Commitment is intended to be effective (each, an “Increase Effective Date”), which shall be effective earlier a date not less than twenty (20) 10 Business Days after the date on which such Increase Notice is delivered to Administrative Agent (or such shorter time period as agreed to in writing by Administrative Agent).
2.7.2. Such Incremental Loan Commitment shall become effective as of such Increase Effective Date; so long as the Lenders providing such Facilities Increase may agreefollowing terms are satisfied:
(i) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both immediately before and after giving effect to any such Facilities IncreaseIncremental Loan Commitment, no Default or Event of Default shall have occurred and be continuing; ;
(ii) no Event of Default shall exist as of the date of funding of such Facilities Increase Incremental Loan;
(iii) as certified by an authorized officer of the Borrower, all representations and warranties of Borrower and the other Loan Parties set forth in this Agreement and the other Loan Documents are true and correct in all material respects with the same effect as if then made, without duplication of any “materiality” or “Material Adverse Effect” qualifiers (except to the extent such representations and warranties expressly relate to a specific earlier date, in which case such representations and warranties shall be true and correct in a minimum amount all material respects (without duplication of $5.0 million; any “materiality” or “Material Adverse Effect” qualifiers) as of such earlier date) as of the Increase Effective Date;
(iv) the proceeds of such Incremental Term Loans shall be used solely to fund Capital Expenditures, Investments, Permitted Acquisitions and Permitted Dividends, in each case to the event 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 Yield for any Additional Loans is 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 Yield combined “yield” for the Closing Date Term Loans that are LIBOR (including any prior Incremental Term Loans), respectively, provided however, the Borrowers may request an increase of the “yield” on the Term Loans by more than 50 basis pointsin order to comply with this clause (v), then which Administrative Agent shall approve;
(Avi) the Applicable Margin for such Closing Date maturity date of the Incremental Term Loans shall be increased 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 necessary so 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 Yield for such Closing Date 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 equal 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 Yield for such Additional Loans minus 50 basis pointsapplicable Increase Effective Date, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans Borrower Representative shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable provide Administrative Agent with a written offer to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The which offer Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, deliver to the Lenders) to commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agentapplicable Incremental Term Loan Commitment, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments (i) first on a pro rata basis. If the Administrative Agent does basis to Lenders, which each Lender may in its sole and absolute discretion accept or decline (it being understood that any Lender not receive (i) notice from existing Lenders indicating such Lenders’ interest affirmatively committing in providing sufficient commitments writing to effectuate the Facilities Increase its pro rata portion, within five (5) Business Days of after the delivery of the applicable Facilities Increase Request thereof, shall be deemed to have declined) and (ii) sufficient commitments from existing 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 to effectuate the Facilities Increase within fifteen accepting their pro rata share of such requested Incremental Term Loan Commitment. Within five (155) Business Days of delivery Administrative Agent’s receipt of the applicable Facilities Increase Requestsuch offer from Borrower, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented 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 unreasonably conditionedinconsistent with the Term Loans (including all prior Incremental Term Loans) so long as, withheld if any such representation, warranty, covenant or delayedevent 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 such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Term Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed deemed, unless the context otherwise requires, to obligate include references to Incremental Term Loans and (b) to Revolving Loans shall be deemed, unless the context otherwise requires, to include references to any Lender to participate in additional Revolving Loans provided under any Facilities IncreaseIncremental Revolving Commitment.
(c) 2.7.7. Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement amendments to this Agreement executed by the Borrowers (and consented to by all or any other Loan Parties)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 Facilities Increase (each such amendment Incremental Revolving Loans or supplementIncremental Term Loans, a “Facilities Increase Agreement”)as applicable.
2.7.8. For The Incremental Loan Commitments and Incremental Loans shall be entitled to all the avoidance of doubtbenefits afforded by, upon closing of a Facilities Increasethis Agreement and the other Loan Documents, new Lenders participating in such Facilities Increase shall for all purposes beand shall, without limiting the foregoing, benefit equally and ratably from the Collateral Documents.
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Increase in Commitments. (a) Any Borrower may at any time after Following the Closing Date, deliver Airgas shall have the right, upon at least fifteen (15) Business Days' prior written notice to the Administrative Agent a request (a “Facilities Increase Request”) U.S. Agent, to incur additional Loans (“Additional Loans”; increase the U.S. Revolving Committed Amount and/or the U.S. Term Loan Committed Amount by up to $150,000,000 in the aggregate for all such increases, in one or more increases, at any time and from time to time, subject, however, in any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an amount not case, to exceed an aggregate principal amount of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as satisfaction of the Applicable Determination Date following conditions precedent:
(giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debti) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have has occurred and be continuing; is continuing on the date on which such Facilities Increase increase is to become effective;
(ii) the representations and warranties set forth in Article VI of this Credit Agreement shall be true and correct in a minimum amount all material respects on and as of the date on which such increase is to become effective;
(iii) such increase shall be an integral multiple of $5.0 million; 1,000,000 and shall in no event be less than $5,000,000;
(iv) such requested increase shall be effective on such date only to the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis pointsextent that, then on or before such date, (A) the Applicable Margin for such Closing Date Loans U.S. Agent shall be increased have received and accepted a corresponding amount of Additional Commitment(s) pursuant to a commitment letter(s) acceptable to the extent necessary so that the Yield for such Closing Date Loans is equal U.S. Agent from one or more lenders acceptable to the Yield for U.S. Agent and, with respect to any lender that is not at such Additional Loans minus 50 basis pointstime a Lender hereunder, Airgas and (B) each such lender shall have executed an agreement in the interest rate applicable form of Exhibit 4.4 hereto (each such agreement a "New Commitment Agreement"), accepted in writing therein by the U.S. Agent and, with respect to any Closing Date lender that is not at such time a Lender hereunder, Airgas, with respect to the Additional Commitment of such lender; and
(v) the U.S. Agent shall have received all documents (including resolutions of the board of directors of Airgas and opinions of counsel to Airgas) it may reasonably request relating to the corporate or other necessary authority for and the validity of such increase in the U.S. Revolving Committed Amount and/or the U.S. Term Loan Committed Amount, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the U.S. Agent; and
(vi) if the reallocation, if any, of outstanding Loans among the Lenders in connection with such increase results in the prepayment of Eurodollar Loans on a day which is not the last day of an Interest Period with respect thereto, Airgas shall have paid to each affected Lender such amounts, if any, as may be required pursuant to Section 4.11.
(i) Upon the effectiveness of the increase in the U.S. Revolving Committed Amount and/or the U.S. Term Loan Committed Amount, as applicable, pursuant to subsection (b), (A) the U.S. Revolving Commitment Percentage and/or the U.S. Term Loan Percentage, as applicable, of each Lender shall be automatically adjusted to give effect to such increase, provided that are Fixed Rate the amount of each Lender's U.S. Revolving Commitment and/or U.S. Term Loan Commitment, as applicable, (other than a Lender whose U.S. Revolving Commitment and/or U.S. Term Loan Commitment, as applicable, shall have been increased in connection with such increase) shall remain unchanged and (B) Airgas, the U.S. Agent and the Lenders will use all commercially reasonable efforts to assign and assume outstanding Loans of the affected category to conform the respective amounts thereof held by each Lender to the U.S. Revolving Commitment Percentage as so adjusted, it being understood that the parties hereto shall use commercially reasonable efforts to avoid prepayment or assignment of any affected Loan that is a Eurodollar Loan on a day other than the last day of the Interest Period applicable thereto and (ii) in the case of an increase in the U.S. Term Loan Committed Amount, beginning with the date of the next principal amortization payment occurring after the date of such increase, the amount of each principal amortization payment on the U.S. Term Loans shall be increased by the minimum amount calculated pursuant to the preceding clause that, when allocated ratably (A); and Additional Loans shall otherwise be based on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit outstandings) among all of the Lenders providing holding U.S. Term Loans immediately after giving effect to such Additional Loans no consent shall increase in the U.S. Term Loan Committed Amount, would provide (assuming all other things to be required by the Required Lenders to the extent (1equal) such terms are conformed (or added) in this Agreement for the benefit each of the Lenders hereunder pursuant holding U.S. Term Loans immediately prior to an amendment hereto subject solely giving effect to such increase in the reasonable satisfaction of the Administrative Agent or (2) applicable solely U.S. Term Loan Committed Amount to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower receive in connection with a proposed Facilities Increase. Each such principal amortization payment an amount at least equal to the amount that such Lender may, would have received had such increase in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form U.S. Term Loan Committed Amount (and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) corresponding adjustment to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement principal amortization payment pursuant to this Agreement executed by the Borrowers (and consented to by all other Loan PartiesSection 4.4(c), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be) not taken place.
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Increase in Commitments. (a) Any The Borrower may at any time after the Closing Date, deliver by written notice to the Administrative Agent a request elect to seek commitments (a “Facilities Increase RequestAdditional Commitments”) to incur additional increase the aggregate principal amount of any existing Class of Loans or to establish one or more new Classes of Loans (“Additional Term Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any :
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
(ii) any such Facilities Increase increase or any new Class shall be in an amount not to exceed an aggregate principal amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) 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 A Loans, any bridge or similar loan or facility or revolving credit facilities, the final maturity date of any Additional Term Loans such thatshall be no earlier than the Maturity Date of the Term B-89 Loans;
(vi) other than with respect to Customary Term A Loans, after giving effect 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 incurrence 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, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and 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 Four Quarter Period) is higher greater than the Weighted Average Yield for the Closing Date Loans that are LIBOR Term B-89 Loans by more than 50 basis points, then (A) the Applicable Margin Rate for such Closing Date the Term B-89 Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Weighted Average Yield for such Additional Term Loans minus is not more than 50 basis pointspoints higher than the Weighted Average Yield for the Term B-89 Loans;
(viii) all other terms of the Additional Term Loans (other than as set forth in clauses (iv) through (vii) above), and (B) if more restrictive, taken as a whole, than the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Term B-89 Loans unless otherwise consented (as determined by the Borrower in its reasonable business judgment), such other terms shall be reasonably acceptable to the Borrower and the Administrative Agent (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);
(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-89 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 Required Lenders lenders of Additional Term Loans, on a less than pro rata basis (including, without limitation, any such terms and conditions that would result but in any payment of principal hereunder being applied no event on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
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Increase in Commitments. (a) Any Borrower may at any time after the Closing Date, deliver to the Administrative Agent a request So long as (a “Facilities Increase Request”x) to incur additional Loans (“Additional Loans”; any such increase no Default exists or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, would exist after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as making of the Applicable Determination Date Incremental Term Loans or Incremental Revolving Loans referred to below and the use of proceeds therefrom and (y) after giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery making of the Facilities Increase Request Incremental Term Loans or Incremental Revolving Loans referred to below and the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costsuse of proceeds therefrom, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of Financial Covenants on a pro forma basis on such date and for the most recent Fiscal Quarter with respect to fiscal quarter for which the Borrowers were required to deliver financial statements pursuant to have been delivered in accordance with Section 7.01; both before and 5.01 after giving effect on a pro forma basis to any related adjustment events, including any acquisitions or dispositions after the beginning of the relevant calculation period but prior to or simultaneous with the borrowing of such Facilities IncreaseIncremental Term Loans or Incremental Revolving Loans, no Default or Event of Default shall have occurred then upon written notice to the Administrative Agent, Borrower may from time to time request (i) additional term loans (the “Incremental Term Loans” and be continuingthe related commitments, the “Incremental Term Loan Commitments”) in an aggregate principal amount not to exceed $400,000,000; provided that any such Facilities Increase increase shall be in a minimum an aggregate amount of $5.0 million; and 50,000,000 or any whole multiple of $1,000,000 in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis pointsexcess thereof, and (Bii) additional revolving loans (the interest rate applicable “Incremental Revolving Loans” and the related commitments, the “Incremental Revolving Loan Commitments”) in an aggregate principal amount not to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans)exceed $100,000,000; provided that any such increase shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided, further, that any existing Lender approached to the extent any more favorable term is added for the benefit provide all or a portion of the Lenders providing such Additional Incremental Term Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (and related commitments or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent Incremental Revolving Loans and related commitments may elect or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender maydecline, in its sole discretion, commit to participate provide such loans and commitments. The Incremental Term Loans (A) shall rank pari passu in such Facilities Increase by forwarding its commitment thereto 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 Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part effectiveness of the Facilities Increase shall be allocated 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 commitments on 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 pro rata basis. If final maturity date earlier than the Administrative Agent does Term B Loan Maturity Date, and (z) the Incremental Term Loans shall not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments have a Weighted Average Life to effectuate Maturity that is shorter than the Facilities Increase within five (5) Business Days of delivery then-remaining Weighted Average Life to Maturity of the applicable Facilities Increase Request and Term B Loans. Any Term B Lender or additional bank or financial institution electing to make available an Incremental Term Loan Commitment (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Incremental Term Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by Lender or make its Incremental Term Loan Commitment available, as the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”)case may be, subject under this Agreement, pursuant to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement (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 Borrowers (and consented to by all other Loan Parties), each Incremental Term Lender and the Administrative Agent, and to any other documentation, in each case on terms and documentation satisfactory to the Administrative Agent and the Lead Arranger. The Incremental Revolving Loans (A) shall rank pari passu in right of payment and right of security in respect of the Collateral with the Revolving Loans and (B) 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 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 Facilities Increase 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 Revolving Lender and the Administrative Agent, and to any other documentation, in each case on terms and documentation satisfactory to the Administrative Agent and the Lead Arranger. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendment amendments to this Agreement and the other Loan Documents as may be necessary or supplementappropriate, a “Facilities Increase Agreement”). For in the avoidance opinion of doubtthe Administrative Agent, upon closing to effect the provisions of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes bethis Section 2.21.
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Increase in Commitments. (a) Any Borrower may at At any time and from time to time after the Closing DateInitial Funding Date (subject to clause (h) below), deliver subject to the terms and conditions set forth herein, the Company may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (1) to increase the amount of Initial Term A Loan or any other then-existing Term Loans or add one or more additional tranches of term loans or term loan com- mitments (any such Term Loans, or additional tranche of term loans or term loan commitments, the “Incremental Term Loans” or “Incremental Term Facility”; and Incremental Term Facility consisting of term “B” loans, an “Incremental Term B Facility”) and/or (2) one or more increases in the Revolving Commitments of any Class (a “Facilities Increase RequestRevolving Commitment Increase”) to incur additional Loans and/or the establishment of one or more new revolving credit commitments (an “Additional LoansRevolving Commitment” or “Incremental Revolving Facility” and, together with any Revolving Commit- ment Increases, the “Incremental Revolving Commitments”; any such increase or incremental incurrence being a together with the Incremental Term Loans, the “Facilities IncreaseIncremental Facilities”); provided that: Any such Facilities Increase shall be in an amount not .
(b) Notwithstanding anything to exceed an contrary herein, the aggregate principal amount of Additional all Incremental Facilities (other than Refinancing Term Loans, Refinancing Notes and Refinanc- ing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt (other than Refinancing Term Loans such thatand Refinancing Notes), after giving effect shall not exceed (i) an amount equal to the incurrence greater of such Additional Loans, (x) $1,400,000,000 and (y) 100.0% of Consolidated EBITDA for the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each most recently ended Test Period (calculated on a Pro Forma Basis as of the Applicable Determination Date Basis) (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty this clause (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increasei), the applicable Borrower shall have delivered to “Fixed Incremental Amount”); plus (ii) the Administrative Agent a Compliance Certificate demonstrating thatamount of any voluntary prepayments, upon giving effect to such Facilities Increaserepurchases, on a Pro Forma Basisredemptions, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements payments made pursuant to Section 7.0110.13 or -102- other retirements of the Initial Term A Loans, any Incremental Facility or any Incremental Equivalent Debt secured on a pari passu basis with the Initial Term A Loans (and, in the case of any such Incremental Facility or Incremental Equivalent Debt in the form of a revolving facility, to the extent accompanied by a permanent reduction of the relevant commitment) (including pur- suant to debt buy-backs made by the Company or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in cash in respect thereof), but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder and (B) pre- payments with the proceeds of substantially concurrent incurrence of other long term Indebted- ness (other than borrowings under the Revolving Facility or any other revolving credit facility, in each case without a substantially concurrent permanent commitment reduction) (this clause (ii), the “Voluntary Prepayment Amount”); both before plus (iii) an amount equal to the unused amount available to incur the Zephyr Separate Financing under Section 7.03(dd) (this clause (iii), the “Reallocated Incremental Amount”); plus (iv) unlimited additional Incremental Facilities and Incremental Equivalent Debt so long as, after giving Pro Forma Effect thereto and after giving effect to any Permitted Acquisition or other Permitted Investment consummated in connection therewith (but excluding the cash proceeds of any such Incremental Facilities Increaseor Incremental Equivalent Debt, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in as the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis pointscase may be), then (A) in the Applicable Margin for such Closing Date Loans shall be increased to case of an Incremental Facility or Incremental Equivalent Debt that is secured on a pari passu basis with the extent necessary so that Liens on the Yield for such Closing Date Loans is equal to Collateral securing the Yield for such Additional Loans minus 50 basis pointsObligations hereunder, and either (Bx) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added Consolidated First Lien Net Leverage Ratio for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent most recently ended Test Period does not exceed 2.50:1.00 or (1) such terms are conformed (or addedy) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent case such Incremental Facility or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower Incremental Equivalent Debt that is incurred in connection with a proposed Facilities Increase. Each Permitted Acquisition or other Permitted Investment consummated in connection therewith, the Consolidated First Lien Net Leverage Ra- tio for the most recently ended Test Period does not exceed the Consolidated First Lien Net Lev- erage Ratio immediately prior to the consummation of such Lender mayPermitted Acquisition or other Per- mitted Investment, (B) in the case of Incremental Equivalent Debt that is secured on a junior ba- sis to the Liens on the Collateral securing the Obligations hereunder, either (x) the Consolidated Secured Net Leverage Ratio for the most recently ended Test Period does not exceed 3.00:1.00 or (y) in the case such Incremental Equivalent Debt that is incurred in connection with a Permit- ▇▇▇ Acquisition or other Permitted Investment consummated in connection therewith, the Consol- idated Secured Net Leverage Ratio for the most recently ended Test Period does not exceed the Consolidated Secured Net Leverage Ratio immediately prior to the consummation of such Per- mitted Acquisition or other Permitted Investment, and (C) in the case of Incremental Equivalent Debt that is unsecured, the Company is in compliance on a Pro Forma Basis with the Leverage Covenant, in its sole discretioneach case, commit it being understood and agreed that Incremental Facilities and Incremen- tal Equivalent Debt may be incurred pursuant to participate in this clause (iv) prior to utilization of the Fixed Incremental Amount, the Reallocated Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of such Facilities Increase by forwarding its calculation that the full committed amount of any new Incremental Revolving Commitments and/or any Incremental Equivalent Debt constituting a revolving credit commitment thereto then being incurred shall be treated as outstanding Indebtedness (this clause (iv), the “Ratio Incremental Amount”) (the aggregate amount under the foregoing clauses (i), (ii), (iii) and (iv), the “Incremental Amount”). Any portion of any Incremental Facility incurred other than under the Ratio Incremental Amount may be reclassified at any time, as the Company may elect from time to time, as incurred under the Ratio Incremental Amount if the Company meets the applicable ratio under the Ratio Incremental Amount at such time on a Pro Forma Basis at any time subsequent to the Administrative Agentincurrence of such Incremental Facility (or would -103- have met such ratio, in form and substance satisfactory to the BVI Borrowerwhich case, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase reclassification shall be allocated deemed to have automatically occurred if not elected by the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”Company); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $5,000,000 in case of Incremental Term Loans or $1,000,000 in case of Incremental Revolving Commitments, provided that such Facilities Increase shall become effective on a date agreed by amount may be less than the applicable Borrower and minimum amount if such amount represents all the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent remaining availability hereunder as set forth in Section 5.02; provided thatabove. Each Incremental Facility (i) shall, if guaranteed, be guaranteed by no Person other than a Guarantor that guarantees the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes beObligations hereunder,
Appears in 1 contract
Sources: Credit Agreement (Sanmina Corp)
Increase in Commitments. (a) Any The Borrower may at any time after the Closing Date, deliver by written notice to the Administrative Agent a request elect to seek (a x) commitments (“Facilities Increase RequestAdditional Revolving Credit Commitments”) to incur additional Loans increase the Revolving Credit Commitments and/or (y) commitments (“Additional LoansTerm Commitments”; any such ) to increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an amount not to exceed an the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A)(x) $75,000,000 less (y) the aggregate principal amount of Junior 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 this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans such thatand voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans and voluntary commitment reductions of Additional Revolving Credit Commitments, after giving effect to the incurrence of extent such Additional LoansTerm Loans and Additional Revolving Credit Commitments 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 Senior First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio, each calculated determined on a Pro Forma Basis as of the Applicable Determination Date (giving effect to last day of the incurrence most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Additional Term Loans or Additional Revolving Credit Commitments, as applicable, available under such Additional Commitments had been outstanding on the last day of such period, and, in each case (x) with respect to any Additional Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans on a Pro Forma Basis in available thereunder, and (y) excluding the calculation cash proceeds of Consolidated Total Debtany Loans pursuant to such Additional Commitments, do not exceed 3.75:1.00 and 6.50:1.00, respectively (this clause (C), the “Incremental Ratio Exception”);
(ii) would not respectively exceed 4.30:1.00 any such increase or 5.00:1.00. no such Facilities Increase any new Class shall be effective earlier 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 twenty (20) Business Days (or $10,000,000 if such shorter time as amount represents all remaining availability under the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants limit set forth in Section 8.14 as the preceding clause (i);
(iii) the final maturity date of any Additional Term Loans shall be no earlier than the most recent Fiscal Quarter Latest Maturity Date;
(iv) 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 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 which any Additional Term Loans shall be determined by the Borrowers were required to deliver financial statements pursuant to Section 7.01Borrower and the lenders of the Additional Term Loans; both before and after giving effect provided that with respect to any such Facilities IncreaseAdditional Term Loans incurred prior to the second anniversary of the Initial Funding Date, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and (x) in the event that the Yield Applicable Rate for any such Additional Term Loans is higher greater than the Yield Applicable Rate for the Closing Date Loans that are LIBOR Term B Loans by more than 50 basis points, then (A) the Applicable Margin Rate for such Closing Date the Term B Loans shall be increased to the extent necessary so that the Yield Applicable Rate for such Closing Date the Additional Term Loans is equal not more than 50 basis points higher than the Applicable Rate for the Term B Loans; 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 Yield for lenders providing such Additional Term Loans minus 50 basis points, 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 interest rate Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Closing Date Additional Term Loans that are Fixed exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Term B Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the amount calculated Borrower and the lenders thereof;
(viii) the Additional Term Loans shall rank pari passu in right of payment and security with the existing 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 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 Term B Loans.
(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 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 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 Term Commitment, each Person with an Additional Term Commitment shall make an Additional Term Loan to the preceding clause Borrower in a principal amount equal to such Person’s Additional Term Commitment. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (Aand 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 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); .
(c) Any other terms of and documentation entered into in respect of any Additional Loans Term Commitments shall otherwise be on non-economic terms and conditions no more favorable pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Loans Term Commitments (including with respect to voluntary and mandatory prepayments), other than those applicable to the Closing Date Loans unless otherwise consented to as contemplated by the Required Lenders Section 2.16(a)(iii), (includingiv), without limitation(v), any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans(vii), (viii) or (ix) above; provided that to the extent such other terms and documentation in respect of any more favorable term is added for the benefit Additional Term Loans are not consistent with those of the Lenders providing such Additional Term B Loans no consent shall be required by the Required Lenders (except to the extent permitted by Section 2.16(a)(iii), (1iv), (v), (vii), (viii) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2ix) applicable solely to periods after the Maturity Date.
(babove) The Administrative Agent they shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto be reasonably satisfactory to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase Additional Commitments shall be evidenced documented by an amendment or supplement Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other 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 executed by and the Borrowers (and consented to by all other Loan Parties)Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lenders providing such Facilities Increase Borrower, to effect the provisions of this Section 2.16.
(each such amendment e) This Section 2.16 shall supersede any provisions in Section 2.13 or supplement, a “Facilities Increase Agreement”). For Section 11.01 to the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes becontrary.
Appears in 1 contract
Sources: First Lien Credit Agreement (American Renal Associates Holdings, Inc.)
Increase in Commitments. (a) Any Borrower The Borrowers may at any time after the Closing Amendment No. 1 Effective Date, deliver by notice to the Administrative Agent a Agent, request the addition of one or more additional tranches of Term Loans (each, an “Incremental Term Facility”) or an increase in the Revolving Credit Facility (each, a “Facilities Increase RequestRevolving Facility Increase” and, together with the Incremental Term Facilities, an “Incremental Facility”) pursuant to additional commitments (the “Incremental Commitments”) to incur additional Loans be effective as of a date (the “Additional LoansIncrease Date”) as specified in the related Incremental Amendment; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase provided, however, that (i) in no event shall be in an amount not to exceed an the aggregate principal amount of all of the Incremental Commitments, taken together with any Additional Loans 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 incurrence establishment or incurrence, as the case may be, of all such Incremental Commitments (which shall be deemed to include the full amount of any Revolving Facility Increase assuming the full amount of such Additional Loansincrease has been drawn), the Consolidated Senior Secured Leverage Ratio and Consolidated Total Leverage Ratioshall not be greater than 2.00:1.00 (or, each calculated in the case of any Incremental Commitments the proceeds of which shall be used to finance all or any portion of a Permitted Acquisition, 2.50:1.00), determined on a Pro Forma Basis as of the Applicable Determination Date 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 incurrence establishment of such Additional Loans 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 in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to last day of the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have fiscal quarter for which financial information was most recently delivered to the Administrative Agent a Compliance Certificate demonstrating thatand the Lenders pursuant to Section 6.01(a) or Section 6.01(b), upon giving effect to such Facilities Increase, on a Pro Forma Basis(v) (A) except as provided in clause (B), the Borrowers would maturity date of any such Incremental Term Loans shall be in compliance with no earlier than the financial covenants set forth in Section 8.14 as Latest Maturity Date of the most recent Fiscal Quarter 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 (other than Term B-4 and Term B-5 Loans) and (B) with respect to which Incremental Term Loans in an aggregate principal amount not to exceed (x) $250,000,000, plus (y) an additional 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 were required after the Amendment No. 1 Effective Date, but in any event the additional amount in this clause (y) not to deliver financial statements pursuant 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 Section 7.01; both before and after giving effect Maturity of such Incremental Term Loans shall be not shorter than the longest Weighted Average Life to any such Facilities Maturity of the Term A Loans, (vi) in the case of an Incremental Revolving Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities 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 (v)) 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 a minimum amount 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 $5.0 million; and OID) payable by the applicable Borrower to the Lenders of the applicable Term B Loans or the Incremental Term Loans in the event that initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), (y) customary arrangement, structuring or other commitment fees payable to the Yield 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 any Additional purposes of determining whether the interest rate margin of such Incremental Term Loans is higher than the Yield for interest rate margin under the Closing Date Loans that are LIBOR applicable Term B Loans by more than 50 basis points0.50% and to the extent the difference in the interest rate floors would cause the interest rate margins of 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 (Aother than Term B-4 Loans or Term B-5 Loans) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so of such differential between interest rate floors; provided, further, that for purposes of this clause (vii), the Yield for such Closing Date Term B-1 Loans, Term B-2 Loans, Term B-3 Loans is equal 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 Yield Administrative Agent and none of the Incremental Facilities shall have the benefit of any Guarantee or any Lien or other security except for such Additional Loans minus 50 basis pointsthe Guaranty and Liens under the Loan Documents for the benefit of the Obligations, and (Bix) the interest rate applicable to any Closing Date Incremental Term Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic may have other terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to determined by the Required Lenders (including, without limitation, any such terms Borrowers and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans)the lenders thereunder; provided that to the extent any more favorable term is added for such terms and conditions are not consistent with the benefit of Term Loans, as the Lenders providing such Additional Loans no consent shall case may be required by the Required Lenders (except to the extent permitted by clause (1v) such terms are conformed or (or addedvii) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely above), they shall be reasonably satisfactory to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity DateAgent.
(b) The Administrative Agent Each notice from the Borrowers pursuant to this Section shall promptly notify each 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 Facilities Increase Request it receives from Incremental Term Loan or Revolving Facility Increase) or by any Borrower in connection with a proposed Facilities other Eligible Assignee that agrees to make an Incremental Term Loan or Revolving Facility Increase. Each such Lender may; provided that, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the extent the Administrative Agent’s consent would be required for an assignment to such Eligible Assignee pursuant to Section 10.07, in form and substance satisfactory each such Eligible Assignee shall be subject to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part approval of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating and, if such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase RequestEligible Assignee will provide any Revolving Facility Increase, the L/C Issuers and Swing Line Lender (such approval in each case not to be unreasonably withheld or delayed) and the Borrower, as applicable Borrower may seek commitments therefor from (any such other Persons (each such Person, Eligible Assignee being called an “Additional Lender”); provided that, such commitments . Commitments in respect of Incremental Term Loans and Revolving Facility Increases shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required become Commitments under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed pursuant to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers (Parent Guarantor, the Borrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and consented the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to by all this Agreement and the other Loan Parties)Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lenders providing such Facilities Increase Borrowers, to effect the provisions of this Section. The effectiveness of (each such amendment and, in the case of any Incremental Amendment for an Incremental Term Loan or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Revolving Facility Increase, new Lenders participating the borrowing thereunder) any Incremental Amendment shall be subject to the satisfaction on the Increase Date of 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 Facilities Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and (y) such other conditions as the parties 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 used to finance all or any portion of the consideration for a Permitted Acquisition. The Borrower will use the proceeds of Incremental Term Loans and borrowings under any Revolving Facility Increase shall for all purposes beany purpose not prohibited by this Agreement.
Appears in 1 contract
Increase in Commitments. (a) Any Borrower may Upon notice to the Administrative Agent, at any time after the Closing Date, deliver to the Administrative Agent a Borrower may request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase Term Commitments or incremental incurrence being a “Facilities Increase”)Additional Revolving Credit Commitments; provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date that (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debti) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increaseaddition, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum the aggregate amount of $5.0 million; Additional Term Commitments and in the event Additional Revolving Credit Commitments that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then have been added pursuant to this Section 2.14 shall not exceed (A) in the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause case of this Clause (A); , on and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Tenth Amendment Effective Date.
(b) The Administrative Agent shall promptly notify each Lender , the greater of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request $920,000,000 and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days 100% of delivery Consolidated EBITDA of the applicable Facilities Increase Request, Borrower Parties for the applicable Borrower may seek commitments therefor from other Persons most recent Test Period for which financial statements have been (each such Person, an “Additional Lender”); provided that, such commitments shall be or are required to have been) furnished pursuant to Section 6.01 ended on terms no better than those offered or prior to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, date of the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to incurrence of such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Term Commitments or Additional Lender. For Revolving Credit Commitments, (the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase DateGeneral Incremental Availability”), subject plus (B) additional amounts to the satisfaction extent that in the case of this clause (B) only the Senior Secured Net Leverage Ratio as of the conditions precedent set forth in Section 5.02; provided thatlast day of the most recently ended Test Period for which financial statements are internally available, after giving Pro Forma Effect to any such Additional Term Commitments or Additional Revolving Credit Commitments (calculated as if such Additional Revolving Credit Commitments were fully drawn on the applicable test date), as applicable, shall not exceed, on the date of the closing date with respect thereto or, if the proceeds of a Facilities Increase are used to finance a Limited Condition TransactionBorrower has made an LCT Election with respect thereto, on the LCT Test Date with respect thereto, 2.50:1.00 (such amounts, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
“Ratio Incremental Availability”) (d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes beit being
Appears in 1 contract
Sources: Credit Agreement (Sensata Technologies Holding PLC)
Increase in Commitments. (a) Any The Borrower may at any time after the Closing Date, deliver to the Administrative Agent a request (a “Facilities Increase Request”in writing) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be Incremental Commitments in an aggregate amount not to exceed an exceed, in the aggregate, the greater of (i) $500,000,000 (minus the aggregate principal amount of Additional Loans such that, all Indebtedness issued pursuant to Section 8.2(n) after giving effect the 2011 Restatement Date but on or prior to the incurrence date of such Additional request, but not to be reduced by the aggregate principal amount of any such Incremental Term 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 and Consolidated Total Leverage Ratiofor 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, each calculated determined on a Pro Forma Basis as pro forma basis (including a pro forma application of the Applicable Determination Date (giving effect to net proceeds therefrom), as if the incurrence additional secured Indebtedness had been incurred at the beginning of such Additional Loans on a Pro Forma Basis four-Fiscal Quarter period, in the calculation increments of Consolidated Total Debt(x) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier less than twenty (20) Business Days $75,000,000 (or such shorter lesser amount if the remaining available Incremental Commitment pursuant to this Section 2.4 is less than $75,000,000) at any one time as the Lenders providing such Facilities Increase may agreewith respect to Incremental Term Loans and (y) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions no less than $5,000,000 (or other acquisitions 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 Lenders (approved by the Required LendersAdministrative 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, which approval shall not be unreasonably withheld, conditioned or delayed) and related closing costswilling to provide such Incremental Commitments. Requests for such Incremental Commitments may be, permitted Investmentsat the Borrower’s option, Capital Expenditures, working capital and other general corporate purposes; for Incremental Revolving Loans (at any time prior to consummating a Facilities Increasethe later of the (i) Revolving Termination Date and (ii) the latest Extended Revolving Termination Date, if any) and/or Incremental Term Loans. In the applicable event the Borrower shall have delivered request Incremental Term Loans, such request shall set forth (i) the amount of the Incremental Term Loans being requested, (ii) the date on which such Incremental Term Loans are requested to be made, (iii) any requested differences between the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, Incremental Term Loans and the Borrowers would existing Tranche B-3 Term Loans (which shall not be in compliance with the financial covenants effective until set forth in Section 8.14 as of an executed Incremental Commitment Agreement executed by the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before Group Members and after giving effect to each applicable Incremental Lender), provided, that in any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Weighted Average Life to Maturity of all Incremental Term Loans shall be increased no shorter than the Weighted Average Life to Maturity of the extent necessary so that Tranche B-3 Term Loans at the Yield for time of the borrowing of such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis pointsIncremental Term Loan, and (B) the interest rate applicable to Maturity Date of any Closing Date Loans that are Fixed Rate Incremental Term Loans shall be increased by no shorter than the amount calculated pursuant final maturity of the Tranche B-3 Term Loans, and (iv) whether such Incremental Term Loans are to 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 preceding clause Tranche B-1 Term Loans or whether such Incremental Term Loans are to have a different yield than the Tranche B-1 Term Loans (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional “Other Term Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better if the yield in respect of any Other Term Loan exceeds the yield for the Tranche B-1 Term Loans by more than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that0.25%, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 Applicable Margin for an assignment of the Tranche B-1 Term Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided thatand, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transactionapplicable, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes beTranche
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Metropcs Communications Inc)
Increase in Commitments. At their election, the Borrowers may, upon notice from the Company to the Administrative Agent (a) Any Borrower may at any which shall promptly notify the Lenders), from time to time on or 47 after the Closing Date, deliver to request an increase in the Administrative Agent a request Commitments (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Commitment Increase”); provided that: Any that (i) at the time of any such Facilities request and upon the effectiveness of the Commitment Increase referred to below, no Default shall exist and Holdings shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in pro forma compliance with the financial covenants set forth in Section 8.14 7.11 (as demonstrated in a Compliance Certificate executed by a Responsible Officer of the most recent Fiscal Quarter with respect to which the Borrowers were Holdings), (ii) no existing Lender shall be required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to provide any such Facilities portion of any Commitment Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities (iii) each Commitment Increase shall be in a minimum amount of $5.0 million; 10,000,000 and in increments of $1,000,000 in excess thereof, (iv) no more than three requests for a Commitment Increase may be made during the event that term of this Agreement and (v) the Yield for any Additional Loans is higher than the Yield aggregate amount of all such Commitment Increases shall not exceed, collectively, $50,000,000 (which such amount shall be reduced on a dollar-for-dollar basis for the amount of the Aggregate Commitments in excess of $100,000,000 on the Closing Date Loans that are LIBOR Loans Date). At the time of sending such notice, the Company (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 less than ten Business Days from the date of delivery of such notice to the Lenders). Any such notice shall set forth the amount and terms of the relevant Commitment Increase requested by the Borrowers and to be agreed by any Lenders or Additional Lenders (as defined below) providing such Commitment Increase. The Borrowers may arrange for one or more than 50 basis pointsbanks or other financial institutions, then (A) the Applicable Margin for such Closing Date Loans each of which shall be increased reasonably satisfactory to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely and, with respect to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase RequestCommitment Increases, the applicable Borrower may seek commitments therefor from Swing Line Lenders and the L/C Issuers (any such bank or other Persons (each such Person, financial institution being called an “Additional Lender”); provided that, such commitments to provide a portion of the Commitment Increase, and each existing Lender shall be on terms no better than those offered afforded an opportunity, but shall not be required, to the existing Lenders, including but not limited provide a portion of such Commitment Increase. Each Additional Lender shall become a Lender hereunder pursuant to any fees, side fees or other arrangements; provided, further that, a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent shall have consented (such consent not and its counsel. As a condition precedent to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Commitment Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree Company shall deliver to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities information as may be requested pursuant to Section 4.01(a)(xi), and to the Administrative Agent a certificate of each Loan Party dated as of the effective date of any such Commitment Increase (in sufficient copies for each Lender) signed by a Responsible Officer of such amendment Loan Party (a) certifying and attaching the resolutions adopted by such Loan Party approving or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities consenting to such Commitment Increase, new Lenders participating and (b) in the case of the Company, certifying that, before and after giving effect to such Facilities Commitment Increase, (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 effective date of any such Commitment Increase, except that (A) if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty is true and correct in all respects, (B) to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date (except that if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty is true and correct in all respects as of such earlier date), and (C) for purposes of this Section 2.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (ii) no Default exists. No Commitment Increase shall for all purposes beincrease the Letter of Credit Sublimit or the Swing Line Sublimit without the written consent of the L/C Issuers or the Swing Line Lenders, as applicable. This Section shall supersede any provisions in Sections 2.13 or 10.01 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) Any The Borrower may at any time after the Closing Date, deliver by written notice to the Administrative Agent a request elect to add one or more incremental term loan facilities hereunder (a each, an “Facilities Increase RequestIncremental Term Facility”; the commitments thereunder are referred to as “Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”) and/or increase commitments under the Revolving Facility (any such increase, an “Incremental Revolving Increase”; the commitments thereunder are referred to incur additional Loans (as “Additional Incremental Revolving Commitments” and loans pursuant thereto “Incremental Revolving Loans”); any such increase or incremental incurrence being a the Incremental Term Facilities and the Incremental Revolving Increases are collectively referred to as “Facilities IncreaseIncremental Facilities”); provided that: Any that the (1) total aggregate amount for all such Incremental Facilities Increase (assuming, in the case of any Incremental Revolving Increase, the full amount thereof is drawn) shall not (as of any date of incurrence thereof) exceed $150,000,000 and (2) the total aggregate amount for each Incremental Facility shall not be in an amount not to exceed an aggregate less than a minimum principal amount of Additional Loans such that$25,000,000 or, after giving effect if less, the remaining amount permitted pursuant to the incurrence of foregoing clause (1). Each such Additional Loansnotice shall specify (x) the date (each, an “Increase Effective Date”) on which the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of Borrower proposes that the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase Incremental Facility shall be effective earlier effective, which shall be a date not less than twenty (20) five Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; date on which such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have notice is delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (Ay) the Applicable Margin for identity of each Eligible Assignee to whom the Borrower proposes any portion of such Closing Date Loans shall Incremental Facility be increased to allocated and the extent necessary so that the Yield for amounts of such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans)allocations; provided that any existing Lender approached to the extent any more favorable term is added for the benefit provide all or a portion of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (In- cremental Facility may elect or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender maydecline, in its sole discretion, commit to participate in provide such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part portion of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities IncreaseIncremental Facility.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
Appears in 1 contract
Increase in Commitments. (a) Any Borrower may at any time after the Closing Date, deliver Upon notice to the Administrative Agent a request (a 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 “Facilities Increase RequestIncremental Facility”) pursuant to incur any Incremental Joinder; provided that after giving effect to any such addition, the aggregate amount of all additional Loans 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 thereof. Each such addition under this Section 2.16(a). shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
(b) Any loans made in respect of any such additional Term Commitments (the “Additional Incremental Term Loans”; any such increase ) may be made, at the option of the Borrower, either by (i) increasing the Initial Term Loans with the same terms (including pricing) as the existing Initial Term Loans, or incremental incurrence being (ii) creating a new tranche of terms loans (an “Facilities IncreaseIncremental Term Loan Class”); provided that: that any Incremental Term Loan Class (A) shall not mature prior to the stated Maturity Date applicable to the latest maturing Class of Term Loans on the date of incurrence of such Incremental Term Loans, (B) the 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 (B) above shall not apply to (X) any customary bridge loans so long as any loans, notes, securities or other 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 excess of $350,000,000.
(c) Any such Facilities Increase 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 (i) final maturity date of any such Incremental Revolving Facility shall be no earlier than the 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 final maturity date of the Initial Revolving Credit Facility and (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 an amount not any reduction or termination as compared to exceed an aggregate principal amount earlier maturing Revolving Credit Commitments or (y) increasing any Class of Additional Loans 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 pricing, interest rate margins, rate floors and undrawn fees on the Revolving Credit Facility being increased may be increased for all Revolving Credit Lenders of the Revolving Credit Facility being increased, but additional upfront or similar fees may be payable to the Lenders participating in the Incremental Revolving Credit Commitments without any requirement to pay such amounts to any existing Revolving Credit Lenders).
(d) The Borrower may invite any Lender or any additional Eligible Assignees to become Term Lenders 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 Administrative Agent and the Borrower shall determine the effective date (the “Incremental Effective Date”) and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower and the lenders providing such Incremental Facility of the final allocation thereof and the Incremental Effective Date. As a condition precedent to such addition, before and after giving effect to such increase, (i)(A) the incurrence of such Additional Loans, representations and warranties contained in Article 5 and the Consolidated Senior Leverage Ratio other Loan Documents are true and Consolidated Total Leverage Ratio, each calculated correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on a Pro Forma Basis and as of the Applicable Determination Date Incremental Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and (B) no Event of Default exists after giving effect to such addition (or, in the incurrence 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 contrary in this Section 2.16 or in any other provisions of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Transaction, at the option of the Borrower, (1) the conditions to the Incremental Effective Date shall be subject to the LCT Provisions and (2) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Effective Date shall be the Specified Representations).
(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 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 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), 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 Eurocurrency Rate 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 Eurocurrency Rate floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Eurocurrency Rate floor applicable to such Initial Term 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 Additional Loans on 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 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 Pro Forma Basis in Loan Party.
(i) Except as otherwise specified above, the calculation other terms of Consolidated Total Debt) would not respectively exceed 4.30:1.00 any Incremental Facility (including with respect to pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or 5.00:1.00. no such Facilities Increase redemption terms and provisions), shall be effective earlier than twenty (20) Business Days (or such shorter time as on terms and pursuant to documentation to be determined between the Lenders Borrower and the lenders providing such Facilities Increase may agree) Incremental Facility (and for the avoidance of doubt, 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, at the election of the Borrower, to the extent any more restrictive covenant is added for the benefit of any Incremental Facility (except to the extent only applicable after the delivery latest maturity date of the Facilities), such covenant may also be added for the benefit of all of the Facilities Increase Request (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 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 Facilities Increase 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 used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) Borrower and related closing costs, permitted Investments, Capital Expenditures, its Subsidiaries for working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but the financing of permitted acquisitions and other Investments and any other use not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in prohibited by this Agreement shall be construed to obligate any Lender to participate in any Facilities IncreaseAgreement.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
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Increase in Commitments. (a) Any The Borrower may at any time after the Closing Datemay, deliver by written notice to the Administrative Agent a Agent, request to effect one or more increases in the aggregate amount of the Commitments (a the “Facilities Increase RequestIncremental Commitments”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an aggregate principal amount not to exceed (i) an aggregate principal amount of Additional Loans such that, after giving effect to that the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Secured Leverage Ratio, each 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 Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions Term Loan Facility (or other acquisitions approved by “incremental” provisions of the Required LendersTerm 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) and related closing costs, to the extent permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increaseusing Section 2.20(a)(ii). Notwithstanding the foregoing, if the applicable Borrower shall have delivered has not included in such notice to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect for any Incremental Commitments an explicit election to establish such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements Incremental Commitments pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase2.20(a)(i) or Section 2.20(a)(ii), no Default or Event of Default shall have occurred and be continuing; such Facilities Increase then 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 $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then 25,000,000 or (Aii) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield remaining amount available for Incremental Commitments) and the date on which such Additional Loans minus 50 basis pointsincrease is requested to become effective. The Incremental Commitments may be made by any existing Lender (and each existing Lender shall have the right, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to but not an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender mayobligation, in its sole discretion, commit to participate make available a portion of any Incremental Commitment on terms permitted in such Facilities Increase by forwarding its commitment thereto this Section 2.20 and otherwise on terms reasonably acceptable to the Administrative Agent, in form Agent and substance satisfactory any Lender that fails to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments respond to be made as part any request to make available a portion of the Facilities Increase any Incremental Commitment shall be allocated deemed to the Lenders providing have declined such commitments on a pro rata basis. If the Administrative Agent does not receive request) or by any other bank or other financial institution (i) notice from existing Lenders indicating any such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Personbank or other financial institution, an “Additional Lender”); provided that each Additional Lender, if not already a Lender hereunder, shall be subject to the approval of the Agent, the Swingline Lender and the Issuing Lender (which approvals shall not be unreasonably withheld) and the Borrower and each Additional Lender shall execute all such documentation as the Agent shall reasonably specify to evidence its Commitment and/or its status as a Lender hereunder.
(b) Each of the parties hereto hereby agrees that the Agent may take any and all actions as may be reasonably necessary to ensure that, such commitments 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 discretion of the Agent, following consultation with the Borrower, (i) by requiring the outstanding Revolving Loans to be prepaid with the 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, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no Incremental Commitments or addition of a new Lender shall become effective under this Section 2.20 unless, (i) no Default shall have occurred or be continuing or would exist after giving effect to such increase, (ii) on terms no better than those offered to the existing Lendersdate of such increase, including but not limited to any fees, side fees or other arrangements; provided, further that, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied and the Administrative Agent shall have consented received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (iii) upon reasonable request by the Agent, the Agent shall have received legal opinions and board resolutions consistent with those delivered on the Closing Date under Sections 4.01(g) and 4.01(k)(i) and (iv) on a Pro Forma Basis, after giving effect to such consent not Incremental Commitments and any Acquisition to be unreasonably conditionedconsummated simultaneously with such increase, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement Borrower shall be construed to obligate any Lender to participate in any Facilities Increase.
compliance with Section 6.01 (c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase it being understood that for purposes of determining compliance with this clause (a “Facilities Increase Date”iv), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein Commitments shall be deemed to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representationsfully drawn).
(d) The Facilities Increase Any Incremental Commitments established hereunder shall have terms identical to the Commitments existing immediately prior to the establishment of such Incremental Commitments; provided that any commitment, arrangement, upfront or similar fees may be evidenced by agreed among the Borrower, the Lenders and the Additional Lenders providing such Incremental Commitments.
(e) Incremental Commitments shall become Commitments under this Agreement pursuant to an amendment or supplement (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Facility Documents, executed by the Borrowers (Borrower, each Lender agreeing to provide such Incremental Commitment, each Additional Lender and consented the Agent. The Incremental Amendment may, without the consent of any other Agents or Lenders, effect such amendments to by all this Agreement and the other Loan Parties), Facility Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lenders providing such Facilities Increase Borrower to effect the provisions of this Section 2.20.
(each such amendment f) This Section 2.20 shall supersede any provisions in Section 2.17 or supplement, a “Facilities Increase Agreement”). For 10.02 to the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes becontrary.
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Increase in Commitments. (a) Any Borrower may at any From time to time on and after the Closing Date, deliver Restatement Effective Date and prior to the Administrative Agent a request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis Tranche 1 Termination Date so long as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in , the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis pointsBorrowers may, then (A) the Applicable Margin for such Closing Date Loans shall be increased upon at least 30 days notice to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of 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 $250,000,000. 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 (2z) applicable solely to periods after a combination of the Maturity Dateprocedures described in clauses (x) and (y) of this sentence.
(b) The 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 notify each 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 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 $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 any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit ) to participate in such Facilities Increase by forwarding increase its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part Tranche 2 Commitment hereunder or (z) a combination of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive procedures described in clauses (ix) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (iiy) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increasesentence.
(c) Any 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 Facilities Increase Additional Lender and/or Increasing Lender shall, as of the 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 effective (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 effect to any increase in the Tranche 1 Commitments pursuant to this Section 2.20) and amounts payable under Section 2.18 as a date agreed result of the actions required to be taken under this Section 2.20, shall be paid in full by the applicable Borrower and Borrowers;
(iii) If any such Additional Lender is a Foreign Lender, such Additional Lender shall deliver the Lenders providing such Facilities Increase forms required by Section 2.17(d); and
(a “Facilities Increase Date”), iv) Any Additional Commitment shall be subject to the satisfaction prior written approval of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representationsIssuing Lender.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
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Increase in Commitments. (ai) Any Borrower may at any time after the Closing Date, deliver Upon notice to the Administrative Agent a request (a 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 “Facilities Increase RequestIncremental Facility”) pursuant to incur any Incremental Joinder; provided that after giving effect to any such addition, the aggregate amount of all additional Loans 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 thereof. Each such addition under this Section 2.16(a). shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
(ii) Any loans made in respect of any such additional Term Commitments (the “Additional Incremental Term Loans”; any such increase ) may be made, at the option of the Borrower, either by (i) increasing the Initial Term Loans with the same terms (including pricing) as the existing Initial Term Loans, or incremental incurrence being (ii) creating a new tranche of terms loans (an “Facilities IncreaseIncremental Term Loan Class”); provided that: that any Incremental Term Loan Class (A) shall not mature prior to the stated Maturity Date applicable to the latest maturing Class of Term Loans on the date of incurrence of such Incremental Term Loans, (B) the 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 (B) above shall not apply to (X) any customary bridge loans so long as any loans, notes, securities or other 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 excess of $350,000,000.
(iii) Any such Facilities Increase 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 (i) final maturity date of any such Incremental Revolving Facility shall be no earlier than the 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 final maturity date of the Initial Revolving Credit Facility and (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 an amount not any reduction or termination as compared to exceed an aggregate principal amount earlier maturing Revolving Credit Commitments or (y) increasing any Class of Additional Loans 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 pricing, interest rate margins, rate floors and undrawn fees on the Revolving Credit Facility being increased may be increased for all Revolving Credit Lenders of the Revolving Credit Facility being increased, but additional upfront or similar fees may be payable to the Lenders participating in the Incremental Revolving Credit Commitments without any requirement to pay such amounts to any existing Revolving Credit Lenders).
(iv) The Borrower may invite any Lender or any additional Eligible Assignees to become Term Lenders 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.
(v) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Effective Date”) and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower and the lenders providing such Incremental Facility of the final allocation thereof and the Incremental Effective Date. As a condition precedent to such addition, before and after giving effect to such increase, (i)(A) the incurrence of such Additional Loans, representations and warranties contained in Article 5 and the Consolidated Senior Leverage Ratio other Loan Documents are true and Consolidated Total Leverage Ratio, each calculated correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on a Pro Forma Basis and as of the Applicable Determination Date Incremental Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and (B) no Event of Default exists after giving effect to such addition (or, in the incurrence 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 contrary in this Section 2.16 or in any other provisions of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Transaction, at the option of the Borrower, (1) the conditions to the Incremental Effective Date shall be subject to the LCT Provisions and (2) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Effective Date shall be the Specified Representations).
(vi) 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 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.
(vii) 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 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 Eurocurrency Rate 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 Eurocurrency Rate floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Eurocurrency Rate floor applicable to such Initial Term Loan.
(viii) 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 Additional Loans on 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 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 Pro Forma Basis in Loan Party.
(ix) Except as otherwise specified above, the calculation other terms of Consolidated Total Debt) would not respectively exceed 4.30:1.00 any Incremental Facility (including with respect to pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or 5.00:1.00. no such Facilities Increase redemption terms and provisions), shall be effective earlier than twenty (20) Business Days (or such shorter time as on terms and pursuant to documentation to be determined between the Lenders Borrower and the lenders providing such Facilities Increase may agree) Incremental Facility (and for the avoidance of doubt, 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, at the election of the Borrower, to the extent any more restrictive covenant is added for the benefit of any Incremental Facility (except to the extent only applicable after the delivery latest maturity date of the Facilities), such covenant may also be added for the benefit of all of the Facilities Increase Request (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 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 Facilities Increase acknowledgment shall in no way affect the effectiveness of any amendment entered into to effectuate such amendment in accordance with this Section 2.16.
(x) The proceeds of any Incremental Facility may be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) Borrower and related closing costs, permitted Investments, Capital Expenditures, its Subsidiaries for working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but the financing of permitted acquisitions and other Investments and any other use not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in prohibited by this Agreement shall be construed to obligate any Lender to participate in any Facilities IncreaseAgreement.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be
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Increase in Commitments. (a) Any Borrower may at any time after the Closing Date, deliver Upon notice to the Administrative Agent a request (which shall promptly notify the Lenders), the Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments (each, a “Facilities Increase RequestCommitment Increase”) pursuant to incur additional Loans (“Additional Loans”any Commitment Increase and Joinder Agreement; provided that after giving effect to any such increase 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 not exceed the sum of (i) after the Second Amendment Effective Date, $375,000,000, (ii) (A) in the case of any Commitment Increase that effectively extends the maturity of any Tranche of the existing Term Loans or incremental incurrence being Revolving Credit Facility, an amount equal to such Term Loan or Revolving Credit Facility replaced with such Commitment Increase and (B) in the case of any Commitment Increase that effectively replaces any Revolving Credit Commitment terminated under Section 3.09 or Section 11.01(f), an amount equal to the portion of the relevant terminated Revolving Credit Commitments, (iii) the amount of any voluntary prepayments of the Term Loans or any permanent reduction of the Revolving Credit Commitments (to the extent not financed with the proceeds of long-term Indebtedness), (iv) (iv1) if a “Facilities Increase”); provided that: Any such Facilities Increase shall be Collateral Release Period is not then in effect, an amount not to exceed in excess of an aggregate principal amount of Additional Loans such that, after giving effect to the relevant Commitment Increase (A) if such Commitment Increase is secured by a Lien on the Collateral that is pari passu with the Lien securing the Facilities, the First Lien Leverage Ratio does not exceed 3.50:1.00, or (B) if such Commitment Increase is secured by a Lien on the Collateral that is junior to the Lien securing the Facilities, the Senior Secured Leverage Ratio does not exceed 4.00:1.00 and (2) if a Collateral Release Period is then in effect, an amount not in excess of an amount such that, after giving effect to the relevant Commitment Increase, the Leverage Ratio does not exceed 3.50:1.00; provided that for purposes of calculating such First Lien Leverage Ratio or, Senior Secured Leverage Ratio or Leverage Ratio under this clause (iv) (1) the proceeds from any such Commitment Increase shall not be netted from Indebtedness and (2) any Revolving Credit Commitments then being incurred or established shall be assumed to be fully drawn and (v) with respect to the Additional Term A Loans and Additional Revolving Credit Commitments (each as defined in the Second Amendment) established under the Second Amendment on the Second Amendment Effective Date, an aggregate amount equal to $173,150,000. It is understood and agreed that, unless the Borrower otherwise notifies the Administrative Agent, if all or any portion of any Commitment Increase or Incremental Equivalent Debt would be permitted under clause (iv) of this clause (a) on the applicable date of determination, such Commitment Increase or Incremental Equivalent Debt (or the relevant portion thereof) shall be deemed to have been incurred in reliance on clause (iv) of this clause (a) prior to the utilization of any amount available under clause (i) of this clause(a). Each such addition under this Section 2.16(a). shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
(b) Any loans made in respect of any such additional Term Commitments (the “Additional Term Loans”) may be made, at the option of the Borrower, either by (i) increasing the Term Loans with the same terms (including pricing) as the existing Term Loans, or (ii) creating a new tranche of terms loans (an “Additional Term Loan Tranche”); provided that any Additional Term Loan Tranche (A) shall not mature prior to the stated Maturity Date applicable to the latest maturing Tranche of Term Loans on the date of incurrence of such Additional Term Loans and (B) the Weighted Average Life to Maturity of any Additional Term Loan Tranche shall be no less than the Weighted Average Life to Maturity of such latest maturing Tranche of Term Loans, .
(c) Any such additional Revolving Credit Commitments (the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis “Additional Revolving Credit Commitments”) may be made by increasing the Revolving Credit Commitments with the same terms (including pricing) as any existing Revolving Credit Commitments of the Applicable Determination Date (giving effect to the incurrence latest maturing Tranche of such Additional Loans on Revolving Credit Commitments, and if a Pro Forma Basis Collateral Release Period is then in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase effect, shall be effective earlier than twenty unsecured.
(20d) Business Days (The Borrower may invite any Lender or such shorter time any additional Eligible Assignees to become Term Lenders or Revolving Credit Lenders, as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request applicable, pursuant to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) a commitment increase and related closing costs, permitted Investments, Capital Expenditures, working capital joinder agreement in form and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered substance reasonably satisfactory to the Administrative Agent (each, a Compliance Certificate demonstrating that“Commitment Increase and Joinder Agreement”). No Lender will be obligated to provide all or any portion of any Commitment Increase 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 Commitment Increase.
(e) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, upon giving effect the Administrative Agent and the Borrower shall determine the effective date (the “Additional Commitments Effective Date”) and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower and the lenders providing such Commitment Increase of the final allocation thereof and the Additional Commitments Effective Date. As a condition precedent to such Facilities Increaseaddition, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to such increase, (i) the representations and warranties contained in Article 5 and the other Loan Documents are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the Additional Commitments Effective Date, except to the extent that such Facilities Increaserepresentations 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 (B) no Default or Event of Default shall have occurred exists before or after giving effect to such addition; provided that notwithstanding anything to the contrary in this Section 2.16 or in any other provisions of any Loan Document, if the proceeds of any Commitment Increase are intended to be applied to finance an acquisition or other Investment, in each case permitted hereunder, and the lenders providing such Commitment Increase so agree, such requirements in clauses (i)(A) and (B) of this Section 2.16(e) may be continuing; such Facilities Increase subject to customary “SunGard” or other applicable “certain funds” conditionality provisions and “specified representations” provisions and (ii) the Borrower shall be in a minimum amount Pro Forma Compliance with all of $5.0 million; the covenants set forth in Section 7.10, determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders (either pursuant to Section 6.01 or Section 6.01(b) or in any subsequent delivery of financial information by the Borrower to the Administrative Agent prior to such time), assuming that the applicable additional Commitments were fully drawn on the first day of the fiscal period covered thereby (and the proceeds from such additional Commitments shall not be netted from Indebtedness in the event calculation of the applicable leverage ratio test).
(f) On each Additional Commitments Effective Date, (i) each Lender or Eligible Assignee which is providing an additional Term Commitment (A) shall become a “Term Lender” for all purposes of this Agreement and the other Loan Documents, and (B) shall make an Additional Term Loan to the Borrower in a principal amount equal to such additional Term Commitment, and such Additional 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 additional 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 that is increased by (in the Yield for case of an existing Revolving Credit Lender) or equal to (in the case of a new Revolving Credit Lender) such additional Revolving Credit Commitment.
(g) The interest rate applicable to any Additional Term Loans will be determined by the Borrower and the lenders providing such Additional Term Loans; provided that with respect to any Commitment Increase in respect of the Term B Facility that is higher than pari passu with the Yield for existing Term B Facility in right of payment and with respect to security incurred in the first 18 months after the Closing Date Loans that are LIBOR Loans for which the initial “yield” on such Commitment Increase exceeds the “yield” at such time on the Term B Facility by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans on the Term B Facility shall be increased to the extent necessary so that the Yield for such Closing Date Loans “yield” applicable to the Term B Facility is equal to the Yield for “yield” on such Additional Loans Commitment Increase minus 50 basis pointspoint (the “MFN Provision”). For purposes of the MFN Provision, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans “yield” shall be increased reasonably determined by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing Borrower; provided that in determining the applicable yield: (w) original issue discount or upfront fees paid by the Borrower in connection with such Facilities Commitment Increase or the existing Term B Facility (based on a four-year average life to maturity or, if lesser, remaining average life to maturity) shall be included, (x) any amendments to the Applicable Margin on the existing Term B Facility that became effective subsequent to the Closing Date but prior to the time of the addition of such Commitment Increase shall be included, (y) arrangement, structuring, underwriting fees and amendment fees paid or payable in connection with the existing Term B Facility or to one or more arrangers (or their Affiliates) in their capacities as such applicable to such Commitment Increase (each regardless of whether such amendment fees are paid to or supplementshared in whole or in part with any lender) and any other fees not paid generally to all lenders ratably shall be excluded and (z) if such Commitment Increase includes any “LIBOR” interest rate floor greater than that applicable to the existing Term B Facility and such floor is applicable to existing Term B Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase. The MFN Provision shall also apply to any loan issuance otherwise permitted in Section 7.03(h)(x), 7.03(z) and 7.03(aa) that is pari passu in right of payment with the Term B Facility and secured by a “Lien on the Collateral on a pari passu basis with the Liens securing the Term B Facility.
(h) Any Additional Term Loans may rank pari passu or junior with respect to security with the Facilities Increase (and if applicable, subject to an Acceptable Intercreditor Agreement”), and if a Collateral Release Period is then in effect, shall be unsecured and will not be guaranteed by an entity which is not (or does not become) a Loan Party.
(i) Except as otherwise specified above (including with respect to margin, pricing, maturity and/or fees), the other terms of any Additional Term Loan Tranche, if not substantially consistent with the terms of the applicable Term Facility, shall be reasonably satisfactory to the Administrative Agent (it being understood that terms not substantially consistent with the applicable Term Facility which are applicable only after the Latest Term Maturity Date are acceptable to the Administrative Agent). For of its Restricted Subsidiaries is engaged or will engage, principally or as one of its important activities, in the avoidance business of doubt, upon closing extending credit for the purpose of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be“purchasing” or “carrying” “margin stock” within the respective meanings of each of the quoted terms under Regulation U of the Board of Governors of the Federal Reserve System.
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Sources: Credit and Guaranty Agreement (Black Knight Financial Services, Inc.)
Increase in Commitments.
(a) Any Borrower may at any time after The Borrowers may, by written notice to Agent (an “Increase Notice”), seek an increase in the Closing Date, deliver to the Administrative Agent a request existing Commitments (a an “Facilities Increase RequestIncremental Commitment”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in by an amount not in excess of (x) the greater of $21,000,000 and 100.0% of TTM Adjusted EBITDA (the “Fixed Incremental Amount”), plus (y) all voluntary prepayments, repurchases, redemptions and other retirements of the Term Loans and any Incremental Term Loans incurred under the Fixed Incremental Amount and permanent reductions of the Revolving Loan Commitment and any Incremental Revolving Loan Commitment made prior to exceed an aggregate principal amount such date of Additional incurrence (including loan buy backs pursuant to Dutch Auctions offered to all Lenders of the applicable class on a pro rata basis and open market purchases, which shall be credited to the extent of the actual purchase price paid in cash for such Loans purchased or retired in connection with such thatDutch Auctions or open market purchase) (other than voluntary prepayments, repurchases, redemptions and other retirements and voluntary commitment reductions to the extent funded by a contemporaneous refinancing with long term funded indebtedness (other than Revolving Loans) (the foregoing clauses (x) and (y) being the “Free and Clear Incremental Amount”), plus (z) such additional amounts so long as after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving pro forma effect to such Facilities Increaseproposed increase and any Loans to be made concurrent therewith (assuming that the entire amount of the applicable Incremental Revolving Loan Commitment is funded and excluding the cash proceeds to the Borrowers therefrom for cash netting purposes), as determined on a Pro Forma Basis, pro forma basis for the Borrowers would be in compliance with twelve (12) month period ending on the financial covenants set forth in Section 8.14 as last day of the most recent recently ended Fiscal Quarter with respect to for which the Borrowers were Agent has received (or was required to deliver have received) financial statements pursuant to Section 7.01; both before and after giving effect 6.1.1 or Section 6.1.2(a) (as applicable), the Total Net Debt to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans EBITDA Ratio is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a not greater than ratable basis 5.50 to such Additional Loans); provided that to 1.00 (the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional LenderRatio Incremental Amount”); provided that, the aggregate principal amount of all Incremental Commitments that are Incremental Revolving Loan Commitments shall not exceed $15,000,000. Agent shall promptly deliver a copy of such commitments Increase Notice to each Lender. Each such Increase Notice shall (i) specify (x) the amount of the requested Incremental Commitment, (y) whether the requested Incremental Commitment relates to the Term Loan Commitment (such Incremental Commitment, an “Incremental Term Loan Commitment” and such Loan, an “Incremental Term Loan”) or the Revolving Loan Commitment (such Incremental Commitment, an “Incremental Revolving Loan Commitment” and such Loan, an “Incremental Revolving Loan”) or both and (z) the date (each, an “Increase Effective Date”) on which the Incremental Commitment is intended to be effective, which shall be a date not less than ten (10) Business Days after the date on terms no better than those offered which such Increase Notice is delivered to Agent, (ii) certify that such Term Loans or Revolving Loans, as applicable, when borrowed will constitute “senior debt”, and (iii) certify that the proceeds of such Incremental Term Loans and Incremental Revolving Loans shall be used solely to fund Capital Expenditures, Permitted Acquisitions, Other Acquisition-Like Investments, payment of the Permitted Earn-Outs, to the existing Lendersextent otherwise permitted hereunder, including but not limited Restricted Payments, or for working capital and general corporate needs, in each case, together with fees and expenses related thereto. The effectiveness of any Incremental Commitments shall be subject to any fees, side fees (i) no Event of Default having occurred and be continuing or would result therefrom and (ii) the representations and warranties of Borrowers and the other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing Loan Parties set forth in this Agreement and the other Loan Documents being true and correct in all material respects with the same effect as if then made (except to the extent such representations and warranties expressly relate to a specific earlier date, in which case such representations and warranties shall be construed to obligate any Lender to participate true and correct in any Facilities Increase.
(c) Any all material respects as of such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”earlier date), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if in the case of clauses (i) and (ii) and the leverage test set forth in the first sentence of this Section 2.9.4(a), to the extent the proceeds of a Facilities Increase are any Incremental Term Loan will be used to finance a Limited Condition TransactionAcquisition, the Lenders providing Persons holding the commitments to provide such Facilities Increase Incremental Term Loan may agree (A) to limit certain funds provisions that do not impose as a condition to funding thereof that no Event of Default (other than an Event of Default under Sections 8.1.1 or 8.1.3) exist at the time of funding, in which case such condition shall instead be required to be satisfied on the applicable Limited Condition Acquisition Agreement Signing Date (and the condition precedent requiring that no Event of Default under Section 8.1.1 or 8.1.3 shall also be satisfied at the representations and warranties herein to be true as time of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Partiesfunding), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes be,
Appears in 1 contract
Sources: Credit Agreement
Increase in Commitments. (a) Any Borrower may So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon notice to the Administrative Agent, at any time after the Closing Date, deliver the Borrower may request Additional Term Commitments or Additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments in respect of any loans shall be implemented through (x) the addition of additional new tranches of Term B Loans, Term C Loans or Revolving Credit Commitments that may be a separate Class of loans or (y) the implementation of an increase in existing Term Loans of a particular Class or an increase in existing Revolving Credit Commitments of a particular Class and (ii) if the Borrower makes such election, the provisions of this Section 2.14 shall be read in a manner that permits such election to the Administrative Agent a request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”be implemented); provided that: Any such Facilities Increase shall be that the Borrower is only permitted to implement four additional commitments in an amount not to exceed an aggregate principal amount respect of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date any loans under this Section 2.14; provided further that (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debti) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increaseaddition, no Default the aggregate amount of Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed an amount such that the Consolidated Senior Secured Leverage Ratio does not exceed 3.25 to 1.00 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 after giving effect to such Additional Term Commitments or Event Additional Revolving Credit Commitments, as applicable, on a Pro Forma Basis (and, in each case, in connection with the incurrence of Default shall have occurred and be continuing; any Additional Revolving Credit Commitments, assuming a Borrowing of the maximum amount of Loans available under such Facilities Increase Additional Revolving Credit Commitments), (ii) any such addition shall be in a minimum an aggregate amount of $5.0 million10,000,000 or any whole multiple of $1,000,000 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 Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) the final maturity date of any Additional Term Loans shall be no earlier than the Maturity Date for the Initial Term B Loans (unless such Additional Term Loan is an Additional Term C Loan, in which case the final maturity date of such Additional Term Loan shall be no earlier than the Maturity Date for the Initial Term C Loans), (iv) the weighted average life to maturity of the Additional Term Loans shall be no shorter than the remaining weighted average life to maturity of the Initial Term B Loans (unless such Additional Term Loan is an Additional Term C Loan, in which case the weighted average life to maturity of such Additional Term Loan shall be no shorter than the weighted average life to maturity of the Initial Term C 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 Commitments or the Additional Revolving Credit Commitments, (vii) the interest rate and amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof; and provided that in the event that the Yield for interest margins applicable to any such Additional Loans is higher Term Commitments (other than Additional Term C Commitments) are greater than the Yield interest margins for the Closing Date Loans that are LIBOR Initial Term B Loans by more than 50 basis points, then (A) the Applicable Margin interest margins for such Closing Date the Initial Term B Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield interest margins for such Additional Loans minus Term Commitments are no more than 50 basis pointspoints greater than the interest margins for the Initial Term B Loans (it being understood that the provisions of this proviso shall not apply to the Initial Term C Loans); provided, further, that, in determining the applicable interest rate margins for such Additional Term Commitments and the Initial Term B Loans, (A) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term B Loans or any Additional Term Commitments in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), (B) customary arrangement, structuring or other fees payable by the Borrower to any of the Arrangers (or their respective Affiliates) in connection with the Initial Term B Loans or to one or more arrangers (or their Affiliates) of any Additional Term Commitments and that are not shared with all Lenders providing Additional Term Commitments shall be excluded, and (BC) if such Additional Term Commitments include an interest rate floor greater than the interest rate floor applicable to any Closing Date the Initial Term B Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest margins for the Initial Term B Loans that are Fixed Rate shall be required, to the extent an increase in the interest rate floor for the Initial Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest margins for the Initial Term B Loans) applicable to the Initial Term B Loans shall be increased by the amount calculated pursuant to the preceding clause (A)such amount; and (viii) the Additional Term Loans shall otherwise be rank pari passu in right of payment and of security with the other Loans. Any Additional Term Loans may participate on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans a pro rata basis or on a less than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders pro rata basis (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied but not on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or addedpro rata basis) in this Agreement for any voluntary or mandatory prepayments hereunder, as specified in the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity DateAdditional Facility Joinder Agreement.
(b) The If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall promptly notify determine the effective date (the “Additional Commitments Effective Date”) of such addition. Additional Term Loans may be made, and Additional Revolving Credit Commitments may be provided, by any existing Lender (and each existing Term Lender will have the right, but not an obligation, to make a portion of any Facilities Increase Request it receives from Additional Term Loans and each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Borrower in connection with a proposed Facilities Increase. Each such Lender mayRevolving Credit Commitments, in its sole discretion, commit to participate each case on terms permitted in such Facilities Increase by forwarding its commitment thereto this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “or by any Additional Lender”); , provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, that the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayedwithheld) to such Lender’s or Additional Lender receiving Lender’s providing such commitment Additional Revolving Credit Commitments if such consent would be required under Section 12.07 10.06(b) for an assignment of Loans Revolving Credit Commitments to such Lender or Additional Lender. For As a condition precedent to such addition, the avoidance Borrower shall deliver to the Administrative Agent a certificate dated as of doubtthe Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, nothing before and after giving effect to such increase, (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (provided that representations and warranties that are qualified by maturity shall be true and correct in all respects) on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects (provided that representations and warranties that are qualified by maturity shall be true and correct in all respects) 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 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), the Borrower is in compliance with the covenant 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. 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, (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 and shall become a “Term B Lender” and a “Term Lender” for all purposes of this Agreement and the other Loan Documents and (iii) in the case of any Additional Term C Commitment, shall make an Additional Term C Commitment to the Borrower in a principal amount equal to such Lender’s or Person’s Additional Term C Commitment and shall become a “Term C Lender” and a “Term Lender” for all purposes of this Agreement and the other Loan Documents. Any Additional Revolving Credit Loan shall be construed 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 obligate any Lender Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to participate 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 any Facilities Increasethe Revolving Credit Commitments.
(c) Any such Facilities Increase other terms of and documentation entered into in respect of any Additional Term B Loans or Additional Term C Loans made or any Additional Revolving Credit Commitments provided, in each case pursuant to this Section 2.14, shall become effective on a date agreed by be consistent with the applicable Borrower Term B Loans, Term C Loans or the Revolving Credit Commitments, as the case may be, (including with respect to voluntary and the Lenders providing such Facilities Increase (a “Facilities Increase Date”mandatory prepayments), subject to the satisfaction other than as contemplated by Section 2.14(a)(iii), (iv) or (vii) above; provided that such other terms and documentation in respect of any Additional Term B Loans or Additional Term C Loans may be materially different from those of the conditions precedent set forth in Section 5.02; provided thatTerm B Loans or the Term C Loans, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations andrespectively, to the extent such difference shall be reasonably satisfactory to the Administrative Agent; provided, further, that any Additional Term Loans made or any Additional Revolving Credit Commitments provided, as applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by effected pursuant to one or more joinder agreements or amendments (each, an amendment or supplement to this Agreement “Additional Facility Joinder Agreement”) executed and delivered by the Borrowers (and consented to by all other Loan Parties)Borrower, the Administrative Agent and the Lenders providing such Facilities Increase applicable Additional Lenders, and to the extent applicable, the L/C Issuer and the Swing Line Lender. 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 2.13 or Section 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties, if necessary, to provide for terms applicable to each such amendment or supplementAdditional Term B Commitment and/or Additional Revolving Credit Commitment, a “Facilities Increase Agreement”). For as the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes case may be.
Appears in 1 contract
Increase in Commitments. (a) Any 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 would 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, 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, Borrower may at any from time after to time request (i) additional Term Loans (the Closing “Incremental Term Loans” and the related commitments, the “Incremental Term Loan Commitments”) and/or (ii) additional revolving loans or, prior to the Revolving Credit Maturity Date, an increase to the existing Revolving Loans (the “Incremental Revolving Loans” (together with the Incremental Term Loans, the “Incremental Loans”) and, together with the related commitments, the “Incremental Revolving Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”) up to an aggregate principal amount (other than Replacement Term Loans) not to exceed the sum of (A) $800,000,000 and (B) an amount such that, after giving pro forma effect to such Incremental Loans (and, with respect to any Incremental Revolving Loan Commitments, the full utilization of all such Incremental Revolving Loan 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 its Subsidiaries (such amount, the “Incremental Cap”); provided that (i) any Incremental Term Loans shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and (ii) any Incremental Revolving Loan Commitments shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided, further, that any existing Lender approached to provide all or a 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 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 (x) the Incremental Term Loans shall not have a final maturity date 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, (y) 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 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 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 to any other documentation, in each case on terms and documentation satisfactory to the Administrative Agent 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; provided 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, 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 Revolving Lender and the Administrative Agent, and to any other documentation, in each case on terms and documentation satisfactory to the Administrative Agent and the Lead Arrangers. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.21. In addition, unless otherwise specifically provided herein, all references in the Loan Documents to Term Loans, Revolving Loans, or such other Class of Term 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 2.21, the Administrative Agent and Borrower shall determine the effective date (each, an “Incremental Facility Effective Date”) and the final allocation of such increase. The Administrative Agent shall 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 request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount certificate of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis Borrower dated as of the Applicable Determination Incremental Facility Effective Date signed by a Financial Officer of Borrower (giving effect to i) certifying and attaching (A) the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 resolutions adopted by Borrower approving or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect consenting to such Facilities Increase, on increase and (B) a Pro Forma Basis, the Borrowers would be in certificate demonstrating pro forma compliance with the financial covenants Financial Covenant as set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both 2.21(a) and (ii) certifying that, before and after giving effect to any such Facilities Increaseincrease, (A) the representations and warranties set forth in Article III and the other Loan Documents shall be true and correct in all material respects on and as of the Incremental Facility Effective Date (unless expressly stated to relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (B) no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase 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 become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”)make Revolving Loans, subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are which will be used to finance a Limited Condition Transactionprepay the Revolving Loans of the other Revolving Lenders immediately prior to such Incremental Facility Effective Date, so that, after giving effect thereto, the Revolving Loans outstanding are held by the Revolving Lenders providing pro rata based on their Revolving Credit Commitments after giving effect to such Facilities Increase may agree Incremental Revolving Commitments. If there is a new borrowing of Revolving Loans on such Incremental Facility Effective Date, the Revolving Lenders after giving effect to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representationsIncremental Revolving Commitments shall make such Revolving Loans in accordance with Section 2.02.
(d) The Facilities Increase Borrower shall be evidenced by an amendment or supplement use the proceeds of any Incremental Term Loans and Incremental Revolving Loans for general corporate purposes (including to this Agreement executed by finance Permitted Acquisitions).
(e) This Section 2.21 shall supersede any provisions in Section 9.08 to the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes becontrary.
Appears in 1 contract
Increase in Commitments. (a) Any Borrower may So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon notice to the Administrative Agent, at any time after the Closing Date, deliver the Borrower may request one or more Additional Term Commitments or one or more Additional Revolving Credit Commitments (it being understood and agreed that (i) 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) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to the Administrative Agent a request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”be implemented); provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date that (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debti) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increaseaddition, no Default or Event the aggregate amount of Default Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall have occurred and be continuing; not exceed $300,000,000, (ii) any such Facilities Increase addition shall be in a minimum an aggregate amount of $5.0 million10,000,000 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 Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date, (iv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (the “Outstanding Term Loans”), (v) the Applicable Rate with respect to any Additional Term Loans shall be determined by the Borrower and the lenders of the Additional Term Loans; and provided that in the event that the Yield Applicable Rate for any Additional Term Loans is higher greater than the Yield Applicable Rate for the Closing Date Loans that are LIBOR Outstanding Term Loans by more than 50 basis points, then (A) the Applicable Margin Rate for such Closing Date the Outstanding Term Loans shall be increased to the extent necessary so that the Yield Applicable Rate for such Closing Date the Additional Term Loans is equal to the Yield for such Additional Loans minus not more than 50 basis pointspoints higher than the Applicable Rate for the Outstanding Term Loans, and the Applicable Rate for the Revolving Credit Facility (Bincluding at each point in the grid) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by a like amount; provided, further, that, in determining the amount calculated Applicable Rate with respect to Additional Term Loans or Outstanding Term Loans pursuant to the preceding this clause (Av); and Additional Loans , (x) original issue discount (“OID”) or upfront or similar fees (which shall otherwise be on non-economic terms and conditions no more favorable deemed to constitute like amounts of OID) payable by the Borrower to the Lenders 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, (y) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Outstanding Term Loans or the Additional Term Loans shall be excluded, and (z) if the lowest permissible Eurodollar Rate is greater than those 1.5% or the lowest permissible Base Rate is greater than 2.5% for such Additional Term Loans, the difference between such “floor” and 1.5%, in the case of Eurodollar Loans, or 2.5%, in the case of Base Rate Loans, shall be equated to an increase in the Applicable Rate for purposes of this clause (v), (vi) no Lender shall be required to participate in the Additional Term Commitments or the Additional Revolving Credit Commitments, (vii) subject to clause (iv), the amortization schedule applicable to the Closing Date Loans unless otherwise consented to Additional Term Commitments shall be determined by the Required Lenders Borrower and the lenders thereof and (includingviii) the Additional Term Loans shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, without limitation, any such in each case in this clause (viii) on terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that reasonably satisfactory to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity DateAgent.
(b) The If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall promptly notify determine the effective date (the “Additional Commitments Effective Date”) of such addition. Additional Term Loans may be made, and Additional Revolving Credit Commitments may be provided, by any existing Lender (and each existing Term Lender will have the right, but not an obligation, to make a portion of any Facilities Increase Request it receives from Additional Term Loans and each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Borrower in connection with a proposed Facilities Increase. Each such Lender mayRevolving Credit Commitments, in its sole discretion, commit to participate each case on terms permitted in such Facilities Increase by forwarding its commitment thereto this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in ) or by any other bank or other financial institution (any such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, bank or other financial institution being called an “Additional Lender”); , provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, that the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayedwithheld) to such Lender’s or Additional Lender receiving Lender’s providing such commitment Additional Revolving Credit Commitments if such consent would be required under Section 12.07 10.06(b) for an assignment of Revolving Credit Commitments to such Lender or Additional Lender. As a condition precedent to such addition, 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 such increase, (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 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 2.14(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) the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 7.11 after giving effect to the making of Additional Term Loans or Additional Revolving Credit Loans, 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 and (ii) in the case of any Additional Term Commitment, shall 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. Any Additional Term Loan shall be a “Term 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. 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 Lender. For the avoidance of doubt, nothing Revolving Credit Commitments shall make such Revolving Credit Loans in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increaseaccordance with Section 2.01(b).
(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 2.14, 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)(iii), (iv), (v), (vii) or (viii) above; provided that such Facilities Increase other terms and documentation in respect of any Additional Term Loans may be materially different from those of the Term Loans, as the case may be, to the extent such difference shall become effective on a date agreed 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 accounts or records maintained by the applicable Borrower and Administrative Agent in accordance with the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent provisions set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations2.11.
(d) The Facilities Increase 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, the Loan Documents may be evidenced amended by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (Loan Parties to provide for terms applicable to each such amendment or supplementAdditional Term Commitment and/or Additional Revolving Credit Commitment, a “Facilities Increase Agreement”). For as the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes case may be.
Appears in 1 contract
Sources: Credit Agreement (MSCI Inc.)
Increase in Commitments. (a) Any Borrower may at any time after the Closing Date, deliver to the Administrative Agent a request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: :
(i) Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. .
(ii) no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; ;
(iii) such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; ;
(iv) prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent recently ended Fiscal Quarter with respect to or Fiscal Year, as applicable, for which the Borrowers financial statements have been (or, if not delivered in a timely matter, were required to deliver financial statements have been) delivered pursuant to Section 7.01; 7.01(b) or 7.01(d), as applicable;
(v) both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; ;
(vi) such Facilities Increase shall be in a minimum amount of $5.0 million; and and
(vii) in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans and the 3rd Amendment Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans and 3rd Amendment Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans and 3rd Amendment Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans and 3rd Amendment Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and and
(viii) Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans and the 3rd Amendment Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes bebe deemed to be Lenders, and the Additional Loans made pursuant to such Facilities Increase shall for all purposes be deemed to be Loans hereunder.
Appears in 1 contract
Increase in Commitments. (a) Any Borrower may Upon notice to the Administrative Agent (which shall promptly notify the Lenders), at any time after the Closing Restatement Effective Date, the Company may request: (i) on one or more occasions, additional Term Commitments in respect of an Additional Term Loan Tranche in an amount not to exceed the Term B Loan Permitted Amount; provided that (A) after giving effect to any such Indebtedness, the Senior Secured Leverage Ratio, calculated on a Pro Forma Basis (and specifically giving effect to the repayment of any Total Secured Indebtedness effected on or prior to such date), would be no greater than 2.75 to 1.00 as of the most recently completed period of four consecutive fiscal quarters ending prior to the incurrence of such Indebtedness, such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders (either pursuant to Section 6.01(a) or Section 6.01(b) or in any subsequent delivery of financial information by the Company to the Administrative Agent prior to such incurrence of Indebtedness) as though such incurrence of Indebtedness (and the repayment of any Total Secured Indebtedness effected on or prior to such date) had been consummated as of the first day of the fiscal period covered thereby and (B) the proceeds thereof shall be used in connection with the Transaction; (ii) on one or more occasions, (A) additional Term Commitments in respect of Term Loans having the same terms (including pricing) as the existing Term A-2 Loans (the “Specified Term A-2 Loans”) in an amount not to exceed the Specified Term A-2 Loan Permitted Amount, provided that (1) such Term Commitments may be established no later than 10 Business Days after the Restatement Effective Date and (2) the proceeds thereof shall be used solely to pay obligations under the Metavante Credit Agreement and (B) additional Term Commitments in respect of Term Loans having the same terms (including pricing) as the existing Term A-2 Loans (the “Additional Specified Term A-2 Loans”), provided that (1) such Term Commitments may be established no later than January 31, 2012 and (2) the proceeds thereof shall be used solely to repay Loans and/or replace Commitments under this Agreement and to pay fees and expenses related to the Second Restatement Transactions; (iii) on one or more occasions, (A) additional Revolving Credit Commitments having the same terms (including pricing and currency) as the existing 2014 Multicurrency Revolving Credit Commitments or the existing 2014 US Dollar Revolving Credit Commitments, provided that (x) such Revolving Credit Commitments may be established no later than 10 Business Days after the Restatement Effective Date and (y) the proceeds thereof shall be used in accordance with Section 6.11 and (B) additional 2014 Revolving Credit Commitments having the same terms (including pricing) as the existing 2014 Revolving Credit Commitments, provided that (1) such Revolving Credit Commitments may be established no later than January 31, 2012 and (2) the initial proceeds thereof shall be used solely to repay Loans and/or replace Commitments under this Agreement and to pay fees and expenses related to the Second Restatement Transactions; and (iv) on up to ten occasions after the Second Restatement Effective Date, other additional Term Commitments and/or additional Revolving Credit Commitments; 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 clause (iv) shall not exceed $750,000,000. Any such addition under this Section 2.16(a) shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
(b) Any loans made in respect of any such additional Term Commitments (the “Additional Term Loans”) may be made, at the option of the Company, either by (i) increasing the Term Loans with the same terms (including pricing) as the existing Term Loans, or (ii) creating a new tranche of terms loans (an “Additional Term Loan Tranche”); provided that any Additional Term Loan Tranche (A) shall not mature prior to the stated Maturity Date applicable to the latest maturing Tranche of Term Loans on the date of incurrence of such Additional Term Loans and (B) the Weighted Average Life to Maturity of any Additional Term Loan Tranche shall be no less than the Weighted Average Life to Maturity of such latest maturing Tranche of Term Loans.
(c) Any such additional Revolving Credit Commitments (the “Additional Revolving Credit Commitments”) may be made, at the option of the Company, by either (i) increasing the US Dollar Revolving Credit Commitments or the Multicurrency Revolving Credit Commitments with the same terms (including pricing and currency) as the existing 2014 US Dollar Revolving Credit Commitments or 2014 Multicurrency Revolving Credit Commitments, as the case may be or (ii) creating a new tranche of the Multicurrency Revolving Credit Facility with the Additional Revolving Credit Commitments of Lenders willing to fund in an Additional Alternative Currency pursuant to which Multicurrency Revolving Credit Loans under such new tranche may be denominated in such Additional Alternative Currency.
(d) At the time of the sending of notice requesting additional Term Commitments and/or additional Revolving Credit Commitments, the Company (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 less than ten 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 provide an additional Term Commitment or Revolving Credit Commitment, as applicable, and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase (which shall be calculated on the basis of the amount of the funded and unfunded exposure under all the Facilities held by each Lender). Any Lender not responding within such time period shall be deemed to have declined to provide an additional Term Commitment or Revolving Credit Commitment, as applicable. 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 Term Lenders or Revolving Credit Lenders, as applicable, pursuant to a commitment increase and joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel (each, a “Commitment Increase and Joinder Agreement”).
(e) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, the Administrative Agent and the Company shall determine the effective date (the “Additional Commitments Effective Date”) and the final allocation of such addition. The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such addition and the Additional Commitments Effective Date. As a condition precedent to such addition, the Company shall deliver to the Administrative Agent a request certificate of the Company dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Company certifying that, before and after giving effect to such increase, (a “Facilities Increase Request”i) the representations and warranties contained in Article 5 and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to incur additional Loans the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.16(e), the representations and warranties contained in Section 5.05(a) and (“Additional Loans”; any b) shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (ii) no Default exists before or after giving effect to such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase addition and (iii) the Borrowers shall be in an amount not Pro Forma Compliance with all of the covenants set forth in Section 7.10, determined on the basis of the financial information most recently delivered to exceed an aggregate principal amount the Administrative Agent and the Lenders (either pursuant to Section 6.01(a) or Section 6.01(b) or in any subsequent delivery of Additional Loans financial information by the Company to the Administrative Agent prior to such thattime or, if and to the extent applicable, the Historical Financial Statements) (calculated after giving effect to the incurrence of any such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect additional Commitments only to the incurrence extent of such any loans to be actually funded thereunder on the Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total DebtCommitments Effective Date).
(f) would not respectively exceed 4.30:1.00 On each Additional Commitments Effective Date, (i) each Lender or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders Eligible Assignee which is providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then an additional Term Commitment (A) shall become a “Term Lender” for all purposes of this Agreement and the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis pointsother Loan Documents, and (B) shall make an Additional Term Loan to the Company 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 (except that the interest rate rate, amortization payment amounts and maturity date applicable to any Closing Date Loans that are Fixed Rate Loans shall Additional Term Loan under an Additional Term Loan Tranche may be increased as agreed by the amount calculated pursuant to Company and the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the applicable Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans)additional Term Commitments; provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent amortization payment amounts and maturity date shall be required by in accordance with the Required Lenders to the extent (1requirements of Section 2.16(b)) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, Lender or Eligible Assignee which is providing an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase additional Revolving Credit Commitment shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall Revolving Credit Lender” for all purposes beof this Agreement and the other Loan Documents with a Revolving Credit Commitment that is increased by (in the case of an existing Revolving Credit Lender) or equal to (in the case of a new Revolving Credit Lender) such additional Revolving Credit Commitment.
Appears in 1 contract
Sources: Credit Agreement (Fidelity National Information Services, Inc.)
Increase in Commitments. (a) Any The Borrower may at any time after the Closing Date, deliver by written notice to the Administrative Agent a request elect to seek commitments (a “Facilities Increase RequestAdditional Commitments”) to incur additional increase the aggregate principal amount of any existing Class of Loans or to establish one or more new Classes of Loans (“Additional Term Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any (i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap; (ii) any such Facilities Increase increase or any new Class shall be in an amount not to exceed an aggregate principal amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i); (iii) 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 A Loans, any bridge or similar loan or facility or revolving credit facilities, the final maturity date of any Additional Term Loans such thatshall be no earlier than the Maturity Date of the Term B-78 Loans; (vi) other than with respect to Customary Term A Loans, after giving effect 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 incurrence 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, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and 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 Four Quarter Period) is higher greater than the Weighted Average Yield for the Closing Date Loans that are LIBOR Term B-78 Loans by more than 50 basis points, then (A) the Applicable Margin Rate for such Closing Date the Term B-78 Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Weighted Average Yield for such Additional Term Loans minus is not more than 50 basis pointspoints higher than the Weighted Average Yield for the Term B-78 Loans; (viii) all other terms of the Additional Term Loans (other than as set forth in clauses (iv) through (vii) above), and (B) if more restrictive, taken as a whole, than the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Term B-78 Loans unless otherwise consented (as determined by the Borrower in its reasonable business judgment), such other terms shall be reasonably acceptable to the Borrower and the Administrative Agent (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); (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 Required Lenders lenders of Additional Term Loans, on a less than pro rata basis (including, without limitation, any such terms and conditions that would result but in any payment of principal hereunder being applied no event on a greater than ratable basis to such Additional Loanspro rata basis); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to notice shall specify (x) the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive date (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Personeach, an “Additional LenderCommitments 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, such commitments shall be on terms no better than those offered before and after giving effect to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further thatAdditional Commitments (and assuming full utilization thereof), the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayedcondition set forth in Section 2.14(a)(iv) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increaseis satisfied.
(c) Any 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 Facilities Increase shall become effective on a date agreed by the applicable Borrower Person’s Additional Commitment.
(d) At any time and the Lenders providing such Facilities Increase (a “Facilities Increase Date”)from time to time, subject to the satisfaction of the terms and conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transactionherein, the Lenders providing such Facilities Increase Borrower may agree issue one or more series of Incremental Equivalent Debt in an aggregate principal amount not to limit the condition precedent requiring the representations and warranties herein to be true exceed, as of the date of such Facilities Increase to certain specified representations and, and after giving effect to the extent applicableissuance of any such Incremental Equivalent Debt, acquisition agreement representationsthe Incremental Cap.
(de) The Facilities Increase shall be evidenced by an amendment or supplement issuance of any Incremental Equivalent Debt pursuant to this Agreement executed by Section 2.14, shall (i) in all cases, be subject to the Borrowers (terms and consented conditions applicable to by all other Loan PartiesAdditional 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 Administrative Agent form of term “B” loans secured on a pari passu basis with the Term B- 78 Loans) and the Lenders providing such Facilities Increase (each such amendment a)(viii), as if set forth in this Section 2.14(e), mutatis mutandis (and, for the
(f) This Section 2.14 shall supersede any provisions in Section 3.06 or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes beSection 10.01
Appears in 1 contract
Sources: Amendment Agreement (Avient Corp)
Increase in Commitments. (a) Any Borrower may Upon notice to the Administrative Agent, at any time after the Closing Date, the Borrower may request Additional Term Commitments or Additional Revolving Credit Commitments; provided that (i) after giving effect to any such addition, the aggregate amount of Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed (A) in the case of this Clause (A), on and after the TenthEleventh Amendment Effective Date, the greater of (i) $920,000,0001,000,000,000 and (ii) 100% of Consolidated EBITDA of the Borrower Parties for the most recent Test Period for which financial statements have been (or are required to have been) furnished pursuant to Section 6.01 ended on or prior to the date of the incurrence of such Additional Term Commitments or Additional Revolving Credit Commitments, (the “General Incremental Availability”), plus (B) additional amounts to the extent that in the case of this clause (B) only the Senior Secured Net Leverage Ratio as of the last day of the most recently ended Test Period for which financial statements are internally available, after giving Pro Forma Effect to any such Additional Term Commitments or Additional Revolving Credit Commitments (calculated as if such Additional Revolving Credit Commitments were fully drawn on the applicable test date), as applicable, shall not exceed, on the date of the closing date with respect thereto or, if the Borrower has made an LCT Election AMERICAS/2023810287.92024683232.11 116 Credit Agreement FH11508591.2 with respect thereto, on the LCT Test Date with respect thereto, 2.50:1.00 (such amounts, the “Ratio Incremental Availability”) (it being agreed that (I) the Borrower may designate any such Additional Term Commitments and Additional Revolving Credit Commitments as being incurred pursuant to the General Incremental Availability or Ratio Incremental Availability in this sole discretion, and (II) so long as the all-in yield did not require a change to the interest rate margins pursuant to clause (vi) below when incurred, the Borrower may re-designate any such Additional Term Commitments and Additional Revolving Credit Commitments (or corresponding Additional Term Loans or Additional Revolving Credit Loans, as applicable) originally designated to be incurred under the General Incremental Availability to be incurred under Ratio Incremental Availability if, at the time of such re-designation, the Borrower would be permitted to incur under this Section 2.14 the aggregate principal amount of such Indebtedness being so re-designated), (ii) any such addition shall be in an aggregate amount of $50,000,000 or any whole multiple of $1,000,000 in excess thereof (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term Commitments and Additional Revolving Credit Commitments set forth in clause (i) to this proviso), (iii) (A) the final maturity date of any Additional Term Loans shall be no earlier than the latest Maturity Datematurity date for any then outstanding Term Loans and (B) the final maturity date of any Additional Revolving Credit Loans shall be no earlier than the latest Maturity Date for any then outstanding Revolving Credit Commitments; provided that the amortization schedule with respect to any Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders of such Additional Term Loans, (iv) the weighted average life to maturity of the Additional Term Loans shall be no shorter than the remaining weighted average life to maturity of the then-existing tranche of Term Loans with the latest Maturity Date,maturity date for any then outstanding Term Loans and (v) the loans made pursuant to any Additional Term Loan Commitments may rank pari passu or junior in right of security with the Term Loan Facility or may be unsecured, in which case such Additional Term Loan Commitments and corresponding loans will be established as a separate facility than the Facilities hereunder and (vi) solely with respect to any Additional Term Commitments incurred less than six months after the Tenth Amendment Effective Date that utilize the Ratio Incremental Availability, the all-in yield (whether in the form of interest rate margins, original issue discount, upfront fees or a Eurodollar Rate (used herein as defined in this Agreement prior to giving effect to the Twelfth Amendment) floor greater than 0.75%, with such increased amount being equated to interest margin for purposes of determining any increase to the applicable interest margin under the Term Loan Facility) applicable to any such Additional Term Commitments will be determined by the Borrower and the lenders providing such Additional Term Commitments, but will not be more than 0.50% higher than the corresponding all-in yield (after giving effect to interest rate margins (including the Eurodollar Rate floor), original issue discount and upfront fees) for each then-existing tranche under the Term Loan Facility unless the interest rate margins with respect to such existing Term Loan Facility are increased by an amount equal to the difference between the all-in yield with respect to such Additional Term Commitments and the corresponding all-in yield on the existing Term Loan Facility minus 0.50%..
(a) If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the AMERICAS/2023810287.92024683232.11 117 Credit Agreement FH11508591.2 Borrower shall determine the effective date (the “Additional Commitments Effective Date”) and the final amount of such addition. The Administrative Agent shall promptly notify the Borrower and the Lenders (which may include Persons reasonably acceptable to the Administrative Agent and the Borrower that were not Lenders prior to the Additional Commitments Effective Date) of the final amount of such addition and the Additional Commitments Effective Date. As a condition precedent to such addition, the Borrower shall deliver to the Administrative Agent a request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount certificate of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis Borrower dated as of the Applicable Determination Additional Commitments Effective Date (giving effect to the incurrence of such Additional Loans on signed by a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery Responsible Officer of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating certifying that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increaseincrease, (i) the representations and warranties contained in Article 5 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 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 2.14(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 and (ii) no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis exists immediately before or immediately after giving effect to such Additional Loans)addition; provided that to if the extent any more favorable term is added for Borrower has made an LCT Election in the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender case of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part Borrowing of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Term Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used incurred to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring foregoing conditions shall instead be (1)(A) the representations and warranties herein to specified in the foregoing clause (i) shall be true and correct to the extent required therein as of the date LCT Test Date and (B) representations of the type specified in the parenthetical to Section 1.11(c)(ii) shall be true and correct (to the extent required in Section 1.11(c)(ii)) as of the Additional Commitments Effective Date and (2)(A) no Default or Event of Default exists as of the LCT Test Date and (B) no Specified Event of Default exists immediately before or would exist immediately after such Facilities Increase addition and the consummation of the Limited Condition Transaction. 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 certain specified representations andthe 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.
(b) 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 2.14, 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, acquisition agreement representations.
(d) The Facilities Increase made or provided pursuant to this Section 2.14 shall be evidenced by an amendment one or supplement to this Agreement executed more entries in the Register maintained by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent in accordance with the provisions set forth in Section 2.11.
(c) This Section 2.14 shall supersede any provisions in Section 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be AMERICAS/2023810287.92024683232.11 118 Credit Agreement FH11508591.2 amended by the Agent and the Lenders providing such Facilities Increase (Loan Parties, if necessary, to provide for terms applicable to each such amendment or supplementAdditional Term Commitment and/or Additional Revolving Credit Commitment, a “Facilities Increase Agreement”). For as the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes case may be.
Appears in 1 contract
Sources: Credit Agreement (Sensata Technologies Holding PLC)
Increase in Commitments. (a) Any Borrower Borrowers may at request (i) one or more increases in the amount of the Revolver Commitments (an “Incremental Revolver Commitment”) and/or existing DDTL Commitments (an “Incremental DDTL Commitment”) and/or (ii) one or more new commitments of Term Loans which may be of the same class as any existing Term Loans (an “Incremental Term Loan Increase”) or a new class of term loans (together with any Incremental Term Loan Increase, the “Incremental Term Loan Commitments” and, collectively with any Incremental Revolver Commitment and any Incremental DDTL Commitment, the “Incremental Commitments”), from time to time upon notice to Agent, as long as (a) the requested increase is in a minimum amount equal to the lesser of (i) $10,000,000, or (ii) the balance of the amount available under clause (c) of this Section, (b) the Incremental Commitments are offered on the same terms as the existing Commitments, as applicable, except for fees which shall be determined by the Borrowers and the applicable Lenders, (c) from and after the Closing Date, deliver to the Administrative Agent a request (a “Facilities Increase Request”) to incur additional Loans (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase shall be in an amount Incremental Commitments do not to exceed an aggregate principal amount of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis $400,000,000 in the calculation of Consolidated Total Debtaggregate, (d) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements any Incremental Revolver Commitment, no reduction in Revolver Commitments pursuant to Section 7.01; both before and after giving effect 2.1.4 has occurred prior to any such Facilities Increasethe requested increase, (e) no Default or Event of Default shall have occurred exist immediately before and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) the Applicable Margin for such Closing Date Loans shall be increased after giving pro forma effect to the extent necessary so that the Yield for incurrence of such Closing Date Loans proposed Incremental Commitments, (f) immediately before and immediately after giving effect to any increase in Incremental Commitments, Borrowers’ Net Leverage Ratio is equal to the Yield for such Additional Loans minus 50 basis pointsor less than 6.00 to 1.00 on a pro forma basis, and (Bg) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased delivery of customary legal opinions if reasonably requested by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to increase, (h) the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms representations and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit warranties of the Lenders providing such Additional Loans no consent shall be required by Obligors in the Required Lenders to the extent Loan Documentation being true and correct in all material respects (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive other than (i) notice from existing Lenders indicating with respect to any representations and warranties that are made as of an earlier date which shall be true and correct in all material respects as of such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request earlier date and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each any such Person, an representations or warranties qualified by materiality or “Additional Lender”); provided that, such commitments Material Adverse Effect” or similar language which shall be on terms no better than those offered accurate in all respects after giving effect to the existing Lenders, including but not limited such qualification) and (i) any Incremental Term Loan Commitments shall be subject to any fees, side fees or other arrangementsFIRREA compliance as determined by Agent; provided, further thathowever, in the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment case of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if Incremental Commitments the proceeds of a Facilities Increase are used which will be applied to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit (x) the condition precedent requiring the representations set forth in clause (e) above shall be limited to no Event of Default under Section 11.1(a) or Section 11.1(j) existing on and warranties herein to be true as of the date of effectiveness of such Facilities Increase increase in Incremental Commitments, immediately after giving effect to certain specified representations andsuch increase in Incremental Commitments, (y) the condition set forth in clause (h) above shall be limited to (1) Specified Representations being true and correct in all material respects on and as of the date of effectiveness of such increase in Incremental Commitments; provided that to the extent such Specified Representations expressly relate to an earlier date, such Specified Representations shall be true and correct in all material respects as of such earlier date and (2) Specified Acquisition Agreement Representations (if applicable) being true and correct in all material respects (or in all respects for such Specified Acquisition Agreement Representations are subject to materiality qualifiers) on and as of the date of effectiveness of such increase in Incremental Commitments; provided that, to the extent such Specified Acquisition Agreement Representations (if applicable) expressly relate to an earlier date, such Specified Acquisition Agreement Representations (if applicable) shall be true and correct in all material respects (or in all respects for such Specified Acquisition Agreement Representations are subject to materiality qualifiers) as of such earlier date but, in each case, only to the extent that the Borrowers have (or their applicable affiliate has) the right to terminate (taking into account any applicable cure provisions) their (or its) obligations under such acquisition agreement representations.
or the right to decline to consummate the applicable Acquisition, in each case, pursuant to the terms of such acquisition agreement, as a result of a breach of such representations in such acquisition agreement (din each case, in accordance with the terms thereto) The Facilities Increase shall be evidenced by an amendment or supplement without any liability to this Agreement executed by the Borrowers (or it) and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For z) for the avoidance of doubt, the condition set forth in clause (f) above shall be tested as of the LCT Test Date in accordance with Section 1.5.1; provided, further, that the Additional Lenders and the existing Lenders providing Incremental Commitments shall be permitted to, in connection with any Incremental Commitment the proceeds of which will be applied to finance a Limited Condition Transaction, waive (or not require the satisfaction of) in full or in part any of the conditions set forth in Section 6.2(b) (other than, in connection with a Limited Condition Transaction, the accuracy, to the extent required under Section 6.2(b), of any Specified Representations and Specified Acquisition Agreement Representations (if applicable) (as conformed to apply to such acquisition, including giving effect to any certain funds conditions with respect to the Collateral)).
(b) Agent shall promptly notify Lenders of the requested increase and, within ten (10) Business Days thereafter, each Lender shall notify Agent if and to what extent such Lender commits to increase its Commitment, as applicable. Any Lender not responding within such ten (10) Business Day period shall be deemed to have declined an increase. If Lenders fail to commit to the full requested increase, the Borrower shall then have (x) the right to offer the opportunity to provide such Incremental Commitments to any other Person (subject only to any such Person being an “Eligible Assignee”) and such person may become a Lender hereunder (such Person, and “Additional Lender”) and (y) no subsequent obligation to provide the existing Lenders the opportunity to provide such Incremental Commitments, even if the terms change (as a result of negotiations or otherwise in good faith) from those originally offered. Agent may allocate, in its reasonable discretion, the increased Commitments, as applicable, among committing existing Lenders and, if applicable, Additional Lenders. No existing Lender will have an obligation to make any Incremental Commitment. Provided that the conditions in this Section 2.1.7 and in Section 6.2 are satisfied, total Commitments, as applicable, shall be increased by the requested amount (or such lesser amount committed by existing Lenders and, if any, Additional Lenders) on a date agreed upon closing by Agent and Borrower Agent, but no later than 45 days following Borrowers’ increase request. Agent, Borrowers, existing Lenders and, if any, Additional Lenders shall execute and deliver such documents and agreements as Agent deems appropriate to evidence the increase in and allocations of Commitments, as applicable. On the effective date of an increase, all outstanding Revolver Loans, LC Obligations and other exposures under the Commitments, as applicable, shall be reallocated among Lenders, and settled by Agent if necessary, in accordance with Lenders’ adjusted shares of such Commitments. The terms and provisions of the incremental DDTLs and Revolver Loans will be identical to the terms and conditions applicable to the existing DDTLs and Revolver Loans, as applicable. The terms and provisions of the incremental Term Loans shall be as set forth in a joinder agreement; provided that (a) the weighted average life to maturity of any incremental Term Loan shall be no shorter than the weighted average life to maturity of the existing Term Loan, (b) the final maturity date of any incremental Term Loan shall be no earlier than the Term Loan Maturity Date, (c) incremental Term Loans shall not participate on a greater (but may participate on a lesser) than pro rata basis with the existing Term Loan in any optional or mandatory prepayment hereunder, (d) the incremental Term Loans may be unsecured or secured by the Collateral on a pari passu or junior basis, (e) the all-in-yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a Facilities Increasefour-year average life to maturity or the remaining life to maturity), new Lenders participating but excluding reasonable and customary arrangement, commitment, structuring, amendment and underwriting fees) applicable to any incremental Term Loan in the form of broadly syndicated term loans denominated in U.S. Dollars, will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the then outstanding initial Term Loans , unless the interest rate margin with respect to such Facilities Increase initial Term Loans is 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 with respect to such initial Term Loans minus 0.50%; it being agreed that to the extent the all-in yield with respect to such incremental Term Loan is greater than such all-in yield with respect to such initial Term Loans solely as a result of a higher interest rate floor, then the interest rate margin increase shall for be effectuated solely by increasing the interest rate floor on such initial Term Loans and (f) all purposes beother terms of the incremental Term Loans, if not consistent with the terms of the existing Term Loan, must be reasonably acceptable to the Agent.
Appears in 1 contract
Sources: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)
Increase in Commitments. (a) Any Borrower may at any time after the Closing Date, deliver Upon notice to the Administrative Agent a request (which shall promptly notify the Lenders), the Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments (each, a “Facilities Increase RequestCommitment Increase”) pursuant to incur additional Loans (“Additional Loans”any Commitment Increase and Joinder Agreement; provided that after giving effect to any such increase 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 not exceed the sum of (i) after the Second Amendment Effective Date, $375,000,000, (ii) (A) in the case of any Commitment Increase that effectively extends the maturity of any Tranche of the existing Term Loans or incremental incurrence being a “Facilities Increase”Revolving Credit Facility, an amount equal to such Term Loan or Revolving Credit Facility replaced with such Commitment Increase and (B) in the case of any Commitment Increase that effectively replaces any Revolving Credit Commitment terminated under Section 3.09 or Section 11.01(f); provided that: Any such Facilities Increase shall be in , an amount equal to the portion of the relevant terminated Revolving Credit Commitments, (iii) the amount of any voluntary prepayments of the Term Loans or any permanent reduction of the Revolving Credit Commitments (to the extent not financed with the proceeds of long-term Indebtedness) and (iv) , (iv) an amount not to exceed in excess of an aggregate principal amount of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date (giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities relevant Commitment Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increase, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum amount of $5.0 million; and in the event that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then (A) if such Commitment Increase is secured by a Lien on the Applicable Margin for such Closing Date Loans shall be increased to Collateral that is pari passu with the extent necessary so that Lien securing the Yield for such Closing Date Loans is equal to Facilities, the Yield for such Additional Loans minus 50 basis points, and (B) the interest rate applicable to any Closing Date Loans that are Fixed Rate Loans shall be increased by the amount calculated pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent First Lien Leverage Ratio does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Requestexceed 3.50:1.00, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes beor
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Black Knight Financial Services, Inc.)
Increase in Commitments. (a%3) Any Borrower may at any time after After the Closing Date, deliver upon notice to the Administrative Agent a Agent, the Borrower may request increases to the U.S. Revolving Commitments (a “Facilities Increase Request”) to incur additional Loans (each such increase, the “Additional U.S. Revolving Commitments”), increases to the Multicurrency Revolving Commitments (each such increase, the “Additional Multicurrency Revolving Commitments” and, together with the Additional U.S. Revolving Commitments, the “Additional Revolving Commitments”), increases to any existing Term NY\6127033.17 Loan Facility or one or more new tranches of term loans, including Additional Term A Loans”; any , denominated in either Dollars or Euros (each such increase or incremental incurrence being a and/or new tranche, the “Facilities IncreaseAdditional Term Commitments”); provided that: Any such Facilities Increase shall be in an amount not to exceed an aggregate principal amount of Additional Loans such that, after giving effect to the incurrence of such Additional Loans, the Consolidated Senior Leverage Ratio and Consolidated Total Leverage Ratio, each calculated on a Pro Forma Basis as of the Applicable Determination Date :
(giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debti) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agree) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving effect to such Facilities Increase, on a Pro Forma Basis, the Borrowers would be in compliance with the financial covenants set forth in Section 8.14 as of the most recent Fiscal Quarter with respect to which the Borrowers were required to deliver financial statements pursuant to Section 7.01; both before and after giving effect to any such Facilities Increaseaddition, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase shall be in a minimum the aggregate amount of $5.0 million; Additional Revolving Commitments, Additional Term Commitments and in the event Additional Notes that the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then have been added pursuant to this Section 2.14 shall not exceed (A) the Applicable Margin for such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points$500,000,000, and plus (B) the interest rate applicable amount of Delayed Draw Commitments that have been cancelled without the funding of Delayed Draw Term Loans thereunder plus (C) the amount of all voluntary prepayments and voluntary commitment reductions of the Facilities prior to the date of any such incurrence (the amounts available pursuant to clauses (A) through (C), the “General Incremental Availability”), plus (D) unlimited additional amounts (the “Ratio Incremental Availability”) to the extent that, in the case of this clause (D) only, as of the last day of the most recently ended Test Period for which financial statements are internally available after giving Pro Forma Effect to such Incurrence of Loans pursuant to such Additional Term Commitments, Additional Revolving Commitments and/or Additional Notes, as applicable, and any Investment consummated with the proceeds therefrom, (x) if the Additional Revolving Loans, Additional Term Loans and/or Additional Notes are secured on a pari passu basis with the Facilities, the First Lien Leverage Ratio does not exceed 1.50:1.00 or (y) if such Additional Revolving Commitments, Additional Term Commitments and/or Additional Notes are unsecured or secured on a junior lien basis to the Facilities, the Total Leverage Ratio does not exceed 3.50:1.00 (but assuming for the purpose of each such calculation that (x) the relevant Additional Revolving Commitments shall be treated as fully drawn, (y) the cash proceeds of Additional Revolving Loans, Additional Term Loans and/or Additional Notes, as applicable, are not treated as Cash On Hand for such purpose and (z) the proceeds of any Additional Loans or Additional Notes that are to be used to repay Indebtedness have been so used to prepay such Indebtedness) and, in each case, after giving effect to any Closing Date Loans determination that are Fixed Rate Loans shall be increased by the amount calculated Borrower may make to designate any such Additional Revolving Commitments, Additional Term Commitments and/or Additional Notes as being Incurred pursuant to the preceding clause (A); and Additional Loans shall otherwise be on non-economic terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (General Incremental Availability or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, Ratio Incremental Availability in its sole discretion, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agent, in form and substance satisfactory to the BVI Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request and ;
(ii) sufficient commitments from no existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would will be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.such Additional Facility or Additional Notes without its consent;
(ciii) Any any such Facilities Increase shall become effective Additional Facility shall, except as otherwise provided in clause (vi)(C) below, be secured on a date agreed pari passu basis by the applicable same Collateral securing the Facilities;
(iv) (x) all Additional U.S. Revolving Commitments shall be on the same terms and conditions and subject to the same documentation as the U.S. Revolving Facility (other than with respect to any upfront fees) and (y) all Additional Multicurrency Revolving Commitments shall be on the same terms and conditions and subject to the same documentation as the Multicurrency Revolving Facility (other than with respect to any upfront fees); and NY\6127033.17 (v) the final maturity date of any Additional Term Loans (other than Additional Term A Loans) shall be no earlier than the Maturity Date for the existing Term Loans, the Weighted Average Life to Maturity of any Additional Term Loans (other than Additional Term A Loans) shall be no shorter than the Weighted Average Life to Maturity for the existing Term Loans, and the terms of any Additional Term Loans shall be determined by the Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date lenders of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement to this Agreement executed by the Borrowers (and consented to by all other Loan Parties), the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes beAdditional Term Loans;
Appears in 1 contract
Sources: Credit Agreement (W R Grace & Co)
Increase in Commitments. (a) Any The Borrower may 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 the Latest Maturity Date, deliver to the Administrative Agent a request incur one or more Incremental Term Loan Facilities or Incremental Revolving Credit Facilities (a collectively, “Facilities Increase RequestIncremental Facilities”) to incur additional Loans 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 include any existing Lender or an Additional Lender (“Additional Loans”; any such increase or incremental incurrence being a “Facilities Increase”); provided that: Any such Facilities Increase each of which shall be entitled to agree or decline to participate in its sole discretion) in an aggregate amount for all such requests not to exceed an aggregate principal the sum of (w) $50.0 million, plus (x) the amount of Additional all voluntary prepayments of the Term Loans such thatpursuant 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 as after giving effect to the incurrence of the Loans in respect of such Additional LoansIncremental 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 Consolidated Senior 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 Consolidated Total Leverage Ratiothe existing Lenders will be afforded the opportunity to provide all or part of such Incremental Facility, each (b) no Default or Event of Default exists immediately before or after giving effect thereto, (c) Borrower shall be in compliance with the covenants set forth in Section 7.07, calculated on a Pro Forma Basis as of the Applicable Determination Date (immediately before or after giving effect to the incurrence of such Additional Loans on a Pro Forma Basis in the calculation of Consolidated Total Debt) would not respectively exceed 4.30:1.00 or 5.00:1.00. no such Facilities Increase shall be effective earlier than twenty thereto, (20) Business Days (or such shorter time as the Lenders providing such Facilities Increase may agreed) after the delivery of the Facilities Increase Request to the Administrative Agent; such Facilities Increase shall be used to finance Permitted Acquisitions (or other acquisitions approved by the Required Lenders) and related closing costs, permitted Investments, Capital Expenditures, working capital and other general corporate purposes; prior to consummating a Facilities Increase, the applicable Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that, upon giving pro forma effect to such Facilities Increaseincurrence, the Leverage Ratio, calculated on a Pro Forma Basis, shall not be greater than 0.25 to 1.00 less than the Borrowers would be Leverage Ratio then applicable pursuant to Section 7.07(a), (e) any Incremental Facility that is an increase in compliance with the financial covenants set forth in Section 8.14 as aggregate amount of the most recent Fiscal Quarter 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 which the Borrowers were required existing facility is increased by an amount equal to deliver financial statements pursuant or greater than the difference between the yield with respect to Section 7.01; both before the Incremental Facility and after giving effect the corresponding yield on such existing facility minus 0.50% (for purposes of determining the difference in “yield” as to any such Facilities IncreaseIncremental Facility and the corresponding existing facility, no Default or Event of Default shall have occurred and be continuing; such Facilities Increase yield shall be in a minimum amount calculated by adding the difference with respect to such Incremental Facility and such corresponding existing facility of $5.0 million; and in each of the event that following: (i) Applicable Term Loan Margin, (ii) “LIBOR Floor”, which shall be equated to yield by taking the Yield for any Additional Loans is higher than the Yield for the Closing Date Loans that are LIBOR Loans by more than 50 basis points, then difference of (A) the Applicable Margin for “LIBOR Floor” of such Closing Date Loans shall be increased to the extent necessary so that the Yield for such Closing Date Loans is equal to the Yield for such Additional Loans minus 50 basis points, facility and (B) the interest rate applicable three-month Adjusted Eurodollar Rate as of a date ten business days prior to any Closing Date Loans that are Fixed Rate Loans the closing of such Incremental Facility and (iii) original issue discount and/or upfront fees, which shall be increased equated to yield by dividing such original issue discount and/or upfront fee percentage (as of the date such facility was funded, in each case), by four (provided that for purposes of calculating the yield 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 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 Loan facility, (j) all other terms of such Incremental Facility that is an additional term loan facility or additional revolving facility, if not consistent with the terms of the corresponding existing facility (A) shall be as mutually agreed upon between Borrower and the lenders providing such Incremental Facility and (B) shall not be more restrictive in any material respect than the terms of the 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 minimum amounts of $5 million or a higher multiple of $1 million. Each Incremental Borrowing Notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Credit Commitments being 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 five Business Days nor more than 60 days after the date of Incremental Borrowing Notice, unless otherwise agreed to by the amount calculated pursuant Administrative Agent) and (iii) whether such Incremental Term Loan 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 preceding clause (A); contrary, it is acknowledged and Additional Loans shall otherwise agreed that all Incremental Revolving Credit Commitments, if any, are to be Revolving Commitments and based on non-economic the terms and conditions no more favorable to the Lenders providing such Additional Loans than those applicable to the Closing Date Loans unless otherwise consented to by the Required Lenders (including, without limitation, any such terms set forth herein for Revolving Commitments and conditions that would result in any payment of principal hereunder being applied on a greater than ratable basis to such Additional Revolving Loans); provided that to the extent any more favorable term is added for the benefit of the Lenders providing such Additional Loans no consent shall be required by the Required Lenders to the extent (1) such terms are conformed (or added) in this Agreement for the benefit of the Lenders hereunder pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent or (2) applicable solely to periods after the Maturity Date.
(b) The Administrative Agent Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall promptly notify each Lender of any Facilities Increase Request it receives from any Borrower in connection with a proposed Facilities Increase. Each such Lender may, be entitled to agree or decline to participate in its sole discretion) and additional banks, commit to participate in such Facilities Increase by forwarding its commitment thereto to the Administrative Agentfinancial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in form and substance satisfactory to the BVI connection therewith. The Borrower, within the time period specified in such Facilities Increase Request. The commitments to be made as part of the Facilities Increase shall be allocated to the Lenders providing such commitments on a pro rata basis. If the Administrative Agent does not receive (i) notice from existing Lenders indicating such Lenders’ interest in providing sufficient commitments to effectuate the Facilities Increase within five (5) Business Days of delivery of the applicable Facilities Increase Request each Incremental Term Lender and (ii) sufficient commitments from existing Lenders to effectuate the Facilities Increase within fifteen (15) Business Days of delivery of the applicable Facilities Increase Request, the applicable Borrower may seek commitments therefor from other Persons (each such Person, an “Additional Lender”); provided that, such commitments shall be on terms no better than those offered to the existing Lenders, including but not limited to any fees, side fees or other arrangements; provided, further that, the Administrative Agent shall have consented (execute and deliver an Incremental Term Loan Assumption Agreement having terms and conditions consistent with the terms of this Section 2.16. The Incremental Term Loan Assumption Agreement may, without the consent of any other Lenders, effect such consent not to be unreasonably conditioned, withheld or delayed) to such Additional Lender receiving such commitment if such consent would be required under Section 12.07 for an assignment of Loans to such Additional Lender. For the avoidance of doubt, nothing in this Agreement shall be construed to obligate any Lender to participate in any Facilities Increase.
(c) Any such Facilities Increase shall become effective on a date agreed by the applicable Borrower and the Lenders providing such Facilities Increase (a “Facilities Increase Date”), subject to the satisfaction of the conditions precedent set forth in Section 5.02; provided that, if the proceeds of a Facilities Increase are used to finance a Limited Condition Transaction, the Lenders providing such Facilities Increase may agree to limit the condition precedent requiring the representations and warranties herein to be true as of the date of such Facilities Increase to certain specified representations and, to the extent applicable, acquisition agreement representations.
(d) The Facilities Increase shall be evidenced by an amendment or supplement amendments to this Agreement executed by and the Borrowers (and consented to by all other Loan Parties)Documents that are consistent with and as may be necessary, the Administrative Agent and the Lenders providing such Facilities Increase (each such amendment or supplement, a “Facilities Increase Agreement”). For the avoidance of doubt, upon closing of a Facilities Increase, new Lenders participating in such Facilities Increase shall for all purposes bethe
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