Increase of Commitments; Additional Lenders. (a) The Borrower may, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”). (b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment. (c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments. (d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender. (e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders. (i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that: (ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and (iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties). (f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments. (g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments. (h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 3 contracts
Sources: Revolving Credit and Term Loan Agreement (Strategic Education, Inc.), Revolving Credit and Term Loan Agreement (Strategic Education, Inc.), Revolving Credit and Term Loan Agreement (Strategic Education, Inc.)
Increase of Commitments; Additional Lenders. (a) The Borrower So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers may, upon at least 10 ten days’ written notice (or such shorter period of time as may be permitted by the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Revolving Commitment”) to make an incremental term loan (any such incremental term loan, ” or an “Incremental Term LoanFacility”), by an ; provided that the aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate all Incremental Revolving Commitments or such Incremental Term Loan is incurred shall not exceed $50,000,000 in connection with a Permitted Acquisition or other Investments permitted by the aggregate over the term of this Agreement, . No Lender shall have any amounts (which for purposes of clarity, do not include obligation to extend any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”)Facility.
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower The Borrowers may designate another a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees toto extend such Incremental Facility (each, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lenderextend such Incremental Facility; provided, provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection .
(c) plus In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing Revolving Commitments of (other than any initial upfront fees paid to the Additional Lenders shall not in extending such Incremental Revolving Commitment); and
(ii) the aggregate exceed outstanding Revolving Loans and the unsubscribed amount Pro Rata Share of L/C Obligations will be reallocated by the Administrative Agent on the applicable increase effective date among the Revolving Lenders (including the Additional Commitment Amount Lenders providing such Incremental Revolving Commitment) in accordance with their revised Pro Rata Shares (and the case of Revolving Lenders (including the Additional Lenders providing such Incremental Revolving Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 2.18 in connection with such reallocation as if such reallocation were a request to increase the Aggregate Revolving Commitmentsrepayment).
(d) No Lender (or any successor thereto) shall have any obligation to increase its An Incremental Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.22 shall become effective upon the receipt by the Administrative Agent of of:
(i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower Borrowers and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Incremental Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such ,
(ii) evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors Borrowers with respect to the increase Incremental Facility, and
(iii) a certificate of a Responsible Officer of the Borrowers to the effect that (A) the conditions set forth in the Revolving Commitments or Section 4.2(a) and (b) will be satisfied before and after giving effect to the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent Facility and (iiB) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use payment of any related fees, the proceeds thereof, no Default or Event of Default shall have occurred and Borrowers would be continuing and all representations and warranties of each Loan Party in compliance on a pro forma basis with the covenants set forth in the Loan Documents shall Section 8.4 (after giving effect to any Borrowings to be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing made on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides date that the only representations Incremental Facility becomes effective, and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or deeming any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties Incremental Revolving Commitment to be true and correct or to satisfy the closing conditions in fully drawn for purposes of calculating such Limited Condition Acquisition Agreement applicable to such representations or warrantiescompliance).
(fe) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Incremental Revolving Commitments added through such agreement and (ii) Schedule II I shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(gf) Upon Each supplement or joinder agreement referred to in clause (d)(i) above may, without the consent of any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan other Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay effect such Loans in their entirety and, amendments to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans Documents as may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecurednecessary, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, reasonable opinion of the Administrative Agent and the Additional Lenders Borrowers, to effect the provision of this Section 2.22, and for the avoidance of doubt, this Section 2.22 shall supersede any provisions of Sections 2.20 or such other Lenders, in each case who are providing such Incremental Term Loan Commitment11.2 to the contrary.
Appears in 3 contracts
Sources: Credit Agreement (Fortegra Group, LLC), Credit Agreement (Fortegra Group, LLC), Credit Agreement (Tiptree Inc.)
Increase of Commitments; Additional Lenders. (a) The Borrower mayBorrowers may increase, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to request of the Administrative Agent (who shall promptly provide a copy Borrower Agent, the then effective amount of such notice to each the Aggregate Revolving Loan Lender), propose to Credit Commitment; provided that: (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Credit Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.16, shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitmentnot exceed Three Hundred Million Dollars ($300,000,000); provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions Borrowers shall execute and amortization schedule applicable to deliver such Incremental Term Loans shall be determined by the Borrower documents and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, instruments and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into take such amendments to this Agreement other actions as may be necessary or appropriate (reasonably required by the Agent in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, connection with such increases and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in increase; (iii) subject to customary “Sungard” provisions, if and to the aggregate amount of extent agreed to by the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofIncreasing Lenders, (A) no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to such increase, and (B) all representations and warranties by or on behalf of each Loan Party and its Subsidiaries set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the date of such dateincrease or, except for to the extent such representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) on and as of such earlier date; and (iv) the Incremental Revolving Credit Commitments provided thatunder this Section 2.16 (the “Incremental Revolving Credit Commitments”) shall have an expiration date no earlier than the Termination Date.
(b) The Agent shall invite each Lender to increase the principal amount of its Revolving Credit Commitment, solely with respect to the establishment of Incremental Term Loan Commitments entered into on a pro rata basis, in connection with the financing proposed Incremental Revolving Credit Commitments at the interest margin proposed by the Borrowers, and if sufficient Lenders do not agree to increase their Revolving Credit Commitments in connection with such proposed Incremental Revolving Credit Commitments, then the Agent or the Borrowers may invite any prospective lender who is reasonably satisfactory to the Agent to become a Lender (each such new lender being an “Additional Lender”) in accordance with this Section 2.16. No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Credit Commitment. Only the consent of the Lender agreeing to increase their Revolving Credit Commitments (the “Increasing Lenders”) shall be required for an increase in the aggregate principal amount of the Revolving Credit Commitments pursuant to this Section 2.16. No Lender which declines to increase the principal amount of its Revolving Credit Commitments may be replaced in respect to its existing Revolving Credit Commitments, as applicable, as a Limited Condition Acquisitionresult thereof without such Lender’s consent.
(c) Subject to subsections (a) and (b) of this Section 2.16, any increase requested by the Borrowers shall be effective upon delivery to the Agent of each of the following documents (the date of such effectiveness, the Lenders providing such Incremental Term Loan Commitments may agree “Increase Date”): (i) an originally executed copy of any instrument of joinder signed by a duly authorized officer of each Additional Lender, in form and substance reasonably acceptable to a “funds certain provision” that:
the Agent; (ii) does not impose as a condition notice to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred the Increasing Lenders and be continuing at the time such Limited Condition Acquisition is consummatedAdditional Lenders, in which event form and substance reasonably acceptable to the condition to funding thereof shall instead be that (x) no Default or Event Agent, signed by a Responsible Officer of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummatedBorrower Agent; and
(iii) provides a certificate of the Borrower Agent signed by a Responsible Officer, in form and substance acceptable to the Agent, certifying that each of the conditions in subsection (a) of this Section 2.16 has been satisfied: and (iv) any other certificates or documents that the only representations Agent shall request, each in form and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect substance satisfactory to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties)Agent.
(fd) Upon Anything to the acceptance of any such agreement contrary contained herein notwithstanding, if the All-In Yield that is to be applicable to the Revolving Credit Loans to be made pursuant to the Incremental Revolving Credit Commitments is higher than the All-In Yield applicable to the Revolving Credit Loans hereunder immediately prior to the Increase Date (the amount by which the Administrative AgentAll-In Yield is higher, the Aggregate “Excess”), then the interest margin applicable to the Revolving Commitment Amount Credit Loans immediately prior to the Increase Date shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
Excess minus 0.50 percentage points (g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that the result is positive), subject to the occurrence of and effective upon the Increase Date, and without the necessity of any portion action by any party hereto.
(e) Each of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Lenders having a Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable Credit Commitment prior to the Administrative Agent, so that, after giving effect thereto, Increase Date (the Loans of such Lenders are held ratably by “Pre-Increase Revolving Credit Lenders”) shall assign to any Lender which is acquiring a new or additional Revolving Credit Commitment on the Lenders of such Class in accordance with Increase Date (the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount“Post-Increase Revolving Credit Lenders”), and (y) effective upon such increasePost-Increase Revolving Credit Lenders shall purchase from each Pre-Increase Revolving Credit Lender, at the principal amount of thereof, such interests in the participations held by each Revolving Loan Lender Credit Loans and participation interests in each Letter Swingline Loans and undrawn Letters of Credit then outstanding on such Increase Date as shall be adjusted automatically such necessary in order that, after giving effect to all such adjustmentsassignments and purchases, the Lenders shall hold participations such Revolving Credit Loans and participation interests in each such Letter Swingline Loans and Letters of Credit will be held by Pre-Increase Revolving Credit Lenders and Post-Increase Revolving Credit Lenders ratably in proportion accordance with their Pro Rata Shares after giving effect to their respective such increased Revolving Credit Commitments.
(hf) The Additional Lenders or existing Lenders providing an Incremental Term Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Document to Revolving Credit Loans shall be entitled to all deemed, unless the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each casecontext otherwise requires, to include Revolving Credit Loans made pursuant to the extent set forth in an amendment Incremental Revolving Credit Commitments pursuant to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan CommitmentSection 2.16.
Appears in 3 contracts
Sources: Loan and Security Agreement (Trade Desk, Inc.), Loan and Security Agreement (Trade Desk, Inc.), Loan and Security Agreement (Trade Desk, Inc.)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), Committed Amount by an aggregate amount of incremental commitments not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 200,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
, through the addition of new lenders (b) In or increases of commitments by existing Lenders), provided that any such new lenders are reasonably acceptable to the case of a request to increase Agent, the Aggregate Revolving CommitmentsSyndication Agent, each Revolving Loan and the Borrower. Each Lender shall have the right for a period of 5 Business Days 10 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal up to its Pro Rata Share Revolving Commitment Percentage of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Credit Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.242.3, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.3 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving together with Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentCommitments, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, the Aggregate Revolving Commitment Committed Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement supplement or joinder and Schedule II 2.1(a) shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.3 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Prime Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 35, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Credit Agreement (Journal Communications Inc), Credit Agreement (Journal Communications Inc)
Increase of Commitments; Additional Lenders. (a) The Borrower mayFrom time to time after the Closing Date and in accordance with this Section, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish Borrowers and one or more incremental term loan commitments Increasing Lenders or Additional Lenders (any each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such incremental term loan commitmentincrease, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio following conditions are satisfied:
(determined (1i) after giving effect the aggregate principal amount of all such Incremental Commitments made pursuant to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with this Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) exceed $50,000,000 (the principal amount of any each such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)Incremental Commitment, the “Additional Incremental Commitment Amount”).;
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b)and, (h)since December 31, (i) or (j)) 2012, there shall have occurred and been no change which has had or could reasonably be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition expected to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; anda Material Adverse Effect;
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the incremental Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments provided pursuant to this Section 2.24 that is not (the “Incremental Revolving Commitments”) shall have a termination date no earlier than the Revolving Commitment Termination Date;
(iv) the Borrowers and their Subsidiaries shall be in pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end forma compliance with each of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent financial covenants set forth in an amendment Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to this Agreement have been delivered, calculated as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing if all such Incremental Term Loan Commitment.Revolving Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance;
Appears in 2 contracts
Sources: Revolving Credit Agreement (Fox Factory Holding Corp), Revolving Credit Agreement (Fox Factory Holding Corp)
Increase of Commitments; Additional Lenders. (a) The Borrower mayBorrowers may increase, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to one time request of the Administrative Agent (who shall promptly provide a copy Borrower Agent, the then effective amount of such notice to each the Aggregate Revolving Loan Lender), propose to Credit Commitment; provided that: (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Credit Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.16, shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitmentnot exceed Fifty Million Dollars ($50,000,000); provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions Borrowers shall execute and amortization schedule applicable to deliver such Incremental Term Loans shall be determined by the Borrower documents and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, instruments and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into take such amendments to this Agreement other actions as may be necessary or appropriate (required by the Agent in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, connection with such increases and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, increase; (iii) no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to such increase and all representations and warranties by or on behalf of each Loan Party and its Subsidiaries set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the date of such dateincrease or, except for to the extent such representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) on and as of such earlier date; and (iv) the Incremental Revolving Credit Commitments provided thatunder this Section 2.16 (the “Incremental Revolving Credit Commitments”) shall have an expiration date no earlier than the Termination Date.
(b) The Agent shall invite each Lender to increase the principal amount of its Revolving Credit Commitment, solely with respect to the establishment of Incremental Term Loan Commitments entered into on a pro rata basis, in connection with the financing proposed Incremental Revolving Credit Commitments at the interest margin proposed by the Borrowers, and if sufficient Lenders do not agree to increase their Revolving Credit Commitments in connection with such proposed Incremental Revolving Credit Commitments, then the Agent or the Borrowers may invite any prospective lender who is reasonably satisfactory to the Agent to become a Lender (each such new lender being an “Additional Lender”) in accordance with this Section 2.16. No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Credit Commitment. Only the consent of the Lender agreeing to increase their Revolving Credit Commitments (the “Increasing Lenders”) shall be required for an increase in the aggregate principal amount of the Revolving Credit Commitments pursuant to this Section 2.16. No Lender which declines to increase the principal amount of its Revolving Credit Commitments may be replaced in respect to its existing Revolving Credit Commitments, as applicable, as a Limited Condition Acquisitionresult thereof without such Lender’s consent.
(c) Subject to subsections (a) and (b) of this Section 2.16, any increase requested by the Borrowers shall be effective upon delivery to the Agent of each of the following documents (the date of such effectiveness, the Lenders providing such Incremental Term Loan Commitments may agree “Increase Date”): (i) an originally executed copy of any instrument of joinder signed by a duly authorized officer of each Additional Lender, in form and substance reasonably acceptable to a “funds certain provision” that:
the Agent; (ii) does not impose as a condition notice to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred the Increasing Lenders and be continuing at the time such Limited Condition Acquisition is consummatedAdditional Lenders, in which event form and substance reasonably acceptable to the condition to funding thereof shall instead be that (x) no Default or Event Agent, signed by a Responsible Officer of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummatedBorrower Agent; and
(iii) provides a certificate of the Borrower Agent signed by a Responsible Officer, in form and substance acceptable to the Agent, certifying that each of the conditions in subsection (a) of this Section 2.16 has been satisfied: and (iv) any other certificates or documents that the only representations Agent shall request, each in form and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect substance satisfactory to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties)Agent.
(fd) Upon Anything to the acceptance of any such agreement contrary contained herein notwithstanding, if the All-In Yield that is to be applicable to the Revolving Credit Loans to be made pursuant to the Incremental Revolving Credit Commitments is higher than the All-In Yield applicable to the Revolving Credit Loans hereunder immediately prior to the Increase Date (the amount by which the Administrative AgentAll-In Yield is higher, the Aggregate “Excess”), then the interest margin applicable to the Revolving Commitment Amount Credit Loans immediately prior to the Increase Date shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect Excess, subject to the addition occurrence of such Incremental Term Loan Commitments or Revolving Commitmentsand effective upon the Increase Date, and without the necessity of any action by any party hereto.
(ge) Upon any increase in the aggregate amount Each of the Lenders having a Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, Credit Commitment prior to the extent Increase Date (the Borrower elects “Pre-Increase Revolving Credit Lenders”) shall assign to do so and subject to any Lender which is acquiring a new or additional Revolving Credit Commitment on the conditions specified in Article 3, Increase Date (the Borrower shall reborrow the “Post-Increase Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Credit Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount”), and (y) effective upon such increasePost-Increase Revolving Credit Lenders shall purchase from each Pre-Increase Revolving Credit Lender, at the principal amount of thereof, such interests in the participations held by each Revolving Loan Lender Credit Loans and participation interests in each Letter Swingline Loans and undrawn Letters of Credit then outstanding on such Increase Date as shall be adjusted automatically such necessary in order that, after giving effect to all such adjustmentsassignments and purchases, the Lenders shall hold participations such Revolving Credit Loans and participation interests in each such Letter Swingline Loans and Letters of Credit will be held by Pre-Increase Revolving Credit Lenders and Post-Increase Revolving Credit Lenders ratably in proportion accordance with their Pro Rata Shares after giving effect to their respective such increased Revolving Credit Commitments.
(hf) The Additional Lenders or existing Lenders providing an Incremental Term Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Document to Revolving Credit Loans shall be entitled to all deemed, unless the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each casecontext otherwise requires, to include Revolving Credit Loans made pursuant to the extent set forth in an amendment Incremental Revolving Credit Commitments pursuant to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan CommitmentSection 2.16.
Appears in 2 contracts
Sources: Loan and Security Agreement (Trade Desk, Inc.), Loan and Security Agreement (Trade Desk, Inc.)
Increase of Commitments; Additional Lenders. (a) The So long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) the representations and warranties in the Loan Documents will be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) immediately prior to, and immediately after giving effect to, the incurrence of such Additional Commitment Amount (except to the extent that such representation or warranty expressly relates to an earlier date, in which case such representation or warranty shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date), then from time to time after the Restatement Date, the Borrower may, upon at least 10 fifteen (15) days’ written notice (or such shorter period of time as may be permitted by the Administrative Agent may agree in its sole discretion) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender)Agent, propose to (i) increase either the Aggregate Revolving Commitments (a “Revolving Commitment Increase”) or (ii) to establish one or more incremental new additional term loan commitments loans and/or increase an existing Class of Term Loans (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loaneach, an “Incremental Term Loan”), ) by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) Amount (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments the principal amount of $10,000,000)any such Incremental Term Loan, the “Additional Commitment Amount”)) and in a minimum amount of at least $2,000,000 or a larger multiple of $500,000. For the avoidance of doubt, no Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide any Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide any Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(b) In the case of a request The allocations with respect to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its any Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase Increase or any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, be determined by the Borrower. The Borrower may designate another any bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or and/or provide an Incremental Term Loan Commitment Commitment, as applicable, and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative AgentAgent and, which acceptance will not be unreasonably withheldin the case of an increase in the Aggregate Revolving Commitments, conditioned or delayedthe Swingline Lender and Issuing Bank, in each case, to the extent required by Section 11.4. The sum of the increases in the Revolving Commitments and/or the principal amount of Incremental Term Loans of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments and/or the principal amount of Incremental Term Loans of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount Amount.
(c) With respect to any Incremental Term Loan that is in the case form of a request new Class of Term Loans, (i) any such Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory and voluntary repayments or prepayments of any other Term Loans, (ii) such Incremental Term Loan shall rank pari passu in right of payment and security with the Term Loans, be secured by the same Liens on the Collateral (with the same ranking in priority) that secure the Term Loans and benefit from the same Guarantee as the Term Loans (and not be secured by any other Liens or benefit from any other Guarantee), (iii) the final maturity date shall be no earlier than the latest Maturity Date for any then existing Term Loan, (iv) the weighted average life to maturity of such Incremental Term Loan shall not be shorter than the weighted average life to maturity of any then existing Term Loan, (v) if the interest rate margins for any such Incremental Term Loans are higher than the interest rate margins for the then existing Term Loans by more than 50 basis points (0.50%), then the interest rate margins for the then existing Term Loans shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term Loan minus 50 basis points; provided that, in determining the interest rate margins applicable to such Incremental Term Loan and the existing Term Loans, (w) any prepayment premiums, arrangement, commitment, structuring, syndication, underwriting, placement, success, advisory, ticking and unused line, consent and amendment fees or other fees that are not generally paid ratably to all lenders providing such Indebtedness or to one or more arrangers (or their affiliates) of such Indebtedness shall be excluded, (x) original issue discount (“OID”) and upfront fees paid to the lenders thereunder shall be included (with OID or upfront fees being equated to interest based on assumed four-year life to maturity), (y) if such Incremental Term Loan includes an interest rate floor greater than the applicable interest rate floor for the then existing Term Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Aggregate Revolving Commitmentsinterest rate margin under the existing Term Loans shall be required, but only to the extent an increase in the interest rate floor in the then existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the existing Term Loans shall be increased to the extent of such differential between interest rate floors and (z) for purposes of calculating the adjustments pursuant to this clause (v), such Indebtedness, if it is fixed rate Indebtedness, shall be swapped to a floating rate on a customary matched maturity basis as is reasonably acceptable to the Administrative Agent and the Borrower (this clause (v), the “MFN Provision”) and (vi) the other terms applicable to such Incremental Term Loans shall be substantially identical to, or (taken as a whole as determined by the Administrative Agent) no more favorable to the lenders providing such Incremental Term Loan than, those applicable to any then outstanding Term Loans (or otherwise be reasonably satisfactory to the Administrative Agent), except to the extent such terms (x) applied to the Term Loans existing at the time of incurrence of such Incremental Term Loan (so that existing Lenders also receive the benefit of such provisions) and/or (y) are applicable only to periods after the Maturity Date in in effect at the time of incurrence of such Indebtedness.
(d) No Lender (or any successor theretoi) shall have any obligation to increase its Any Revolving Commitment Increase shall be on the same terms (other than with respect to any upfront fees) and pursuant to the same documentation applicable to the existing Revolving Commitments (other than the amendment, supplement or its other obligations under this Agreement joinder evidencing such increase) and the other Loan Documents or provide an (ii) any Incremental Term Loan Commitmentthat increases an existing Class of Term Loans shall be on the same terms (including maturity date, and any decision by a Lender amortization and, other than with respect to increase its Revolving Commitment or provide an upfront fees (but subject to clause (c)(v) above as if such Incremental Term Loan Commitment shall be made was in its sole discretion independently from any the form of a separate Class), interest rates) and pursuant to the same determination applicable to the Class of Term Loans being increased (other Lenderthan the amendment, supplement or joinder evidencing such increase).
(e) An increase in the aggregate amount of the Revolving Commitments Commitment Increase or the establishment of any Incremental Term Loan Commitments pursuant to this Section 2.24 2.23 shall become effective upon the receipt by the Administrative Agent of a an amendment, supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose providing a Revolving Commitment is to be increasedIncrease or Incremental Term Loan Commitment, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, it being understood that such amendment supplement or joinder may provide for customary “certain funds provisions” as agreed to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the providing an Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 Commitment to the contraryextent the proceeds of such Incremental Term Loan are being used to fund any Permitted Acquisition or permitted Investment. Any such amendment, supplement or joinder may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.23. To the extent reasonably requested by the Administrative Agent, the BorrowerAdministrative Agent shall have received customary legal opinions, board resolutions, solvency certificates, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Guarantors and the Additional Lenders Restatement Date under Section 3.1 (other than changes to such legal opinions resulting from a change in law, change in fact or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments change to this Agreement as may be necessary or appropriate (in counsel’s form of opinion reasonably satisfactory to the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement amendment, supplement or joinder by the Administrative Agent, the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Revolving Commitments added through such agreement supplement or joinder and Schedule II I shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) On the date of the making of any Incremental Term Loans that will be added to any Class of Term Loans, and notwithstanding anything to the contrary set forth herein, such Incremental Term Loans shall be added to (and constitute a part of) each Borrowing of outstanding Term Loans of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding Borrowing of Term Loans of the same type with the same Interest Period of the respective Class. Upon any each increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders2.14, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect each Lender immediately prior to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion increase will automatically and without further act be deemed to their respective Commitments after giving effect have assigned to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing each Lender shall be effected by book entry to the extent that any providing a portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and Revolving Commitment increase (B) the existing each, an “Incremental Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment AmountIncrease Lender”), and (y) effective upon each such increaseIncremental Revolving Increase Lender will automatically and without further act be deemed to have assumed, the amount a portion of the such ▇▇▇▇▇▇’s participations held by each Revolving Loan Lender hereunder in each Letter outstanding Letters of Credit then outstanding shall be adjusted automatically and Swingline Loans such that, after giving effect to each such adjustmentsdeemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit and Swingline Loans held by each Lender (including each such Incremental Revolving Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such ▇▇▇▇▇▇’s Revolving Commitment after giving effect to such increase in the aggregate Revolving Commitment. Additionally, if any Revolving Loans are outstanding at the time any Revolving Commitment Increase is implemented, the Lenders immediately after the effectiveness of such Revolving Commitment Increase shall hold participations purchase and assign at par such amounts of the Revolving Loans outstanding at such time as the Administrative Agent may require such that each Lender holds its Pro Rata Share of all Revolving Loans outstanding immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in each such Letter of Credit in proportion this Agreement shall not apply to their respective Revolving Commitmentsthe transactions effected pursuant to this Section 2.23.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination Each of the Required Lenders parties hereto acknowledges and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall agrees that no ▇▇▇▇ Event may be entitled to all closed until the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created date that is (a) if there are no Mortgaged Properties located in an area which has been identified by the Loans DocumentsFederal Emergency Management Agency (or any successor agency) as a “special flood hazard area”, except that such Incremental Term Loans may be subordinated ten (10) days or (b) if there are any Mortgaged Properties located in right of paymentan area which has been identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area”, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, thirty (30) days (in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower“Notice Period”), after the Administrative Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such Mortgaged Property: (i) a completed “life of loan” standard flood hazard determination from a third party vendor; (ii) if such Mortgaged Property is located in a “special flood hazard area”, (A) a notification to the Borrower of that fact and (if applicable) notification to the Additional Borrower that flood insurance coverage is not available and (B) evidence of the receipt by the Borrower of such notice and (C) a notice about special flood hazard area status and flood disaster assistance executed by the Borrower and any applicable Loan Party relating thereto; and (iii) if such notice is required to be provided to the Borrower and flood insurance is available in the community in which such Mortgaged Property is located, evidence of required flood insurance in compliance with subclause (C) of clause (d) of Part I of the defined term “Real Estate Documents”; provided that any such ▇▇▇▇ Event may be closed prior to the Notice Period if the Administrative Agent shall have received written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance has been completed by the Lenders (such written confirmation not to be unreasonably withheld, conditioned or such other Lenders, delayed).
(i) This Section 2.23 shall supersede any provisions in each case who are providing such Incremental Term Loan CommitmentSection 2.21 or 11.2 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (OneWater Marine Inc.), Credit Agreement (OneWater Marine Inc.)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to request incremental term loans hereunder (each such increase, upon at least 10 days’ written notice an “Incremental Commitment”) so long as the following conditions are satisfied:
(or i) the aggregate principal amount of all such shorter period Incremental Commitments made pursuant to this Section shall not exceed $250,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2023, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) on any incremental term loans made pursuant to this Section (the “Incremental Term Loans”) shall (1) not mature earlier than the existing Term Loans and Incremental Term Loans and (2) have no amortization or otherwise be permitted to be prepaid prior to the latest existing Maturity Date of any Term Loans or any tranche of Incremental Term Loans;
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such dateIncremental Term Loans had been made as of the first day of the relevant period for testing compliance;
(vi) All Incremental Term Loans (i) shall rank pari passu in right of payment with the Term Loans and any existing Incremental Term Loans, except for representations (ii) shall be equally and warranties ratably secured with the Term Loans and existing Incremental Term Loans, and (iii) shall be treated substantially the same (and in any event, not more favorably than) the Term Loans and any existing Incremental Term Loans; and
(vii) all other terms and conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrower shall provide at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that expressly relate agree to an earlier dateprovide Incremental Term Loans, which fees may be variable based upon the amount by which any such Lender is willing to provide Incremental Term Loans. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to provide Incremental Term Loans, and any decision by a Lender to provide Incremental Term Loans shall be true and correct made in all material respects (or in all respectsits sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for the Incremental Term Loans, as applicable) as of such earlier date; provided that, solely pursuant to this Section. No Lender which declines to provide Incremental Term Loans may be replaced with respect to the establishment of its existing Term Loans and/or its Incremental Term Loan Commitments entered into Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in connection writing about whether it will provide Incremental Term Loans within 15 days after receipt of such notice, such Lender shall be deemed to have declined to provide Incremental Term Loans, as applicable. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the financing “Additional Lenders”), which Additional Lenders may assume all or a portion of a Limited Condition Acquisition, such Incremental Commitment. The Borrower and the Lenders providing Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Term Loan Commitments may agree Loans among the Increasing Lenders and the Additional Lenders. The sum of all Incremental Term Loans of the Increasing Lenders plus the Incremental Term Loans of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to paragraphs (a) and (b) of this Section, any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth any new Incremental Term Loans, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a “funds certain provision” that:party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) does not impose as a condition to funding thereof that no Default or Event such evidence of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing appropriate corporate authorization on the Limited Condition Acquisition Test Date part of the Borrower with respect to such Limited Condition Acquisition Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(yiii) no Default a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in paragraph (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or Event of Default under any Increasing Lender, executed promissory notes evidencing such Incremental Term Loans, issued by the Borrower in accordance with Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated2.10; and
(iiiv) provides any other certificates or documents that the only representations Administrative Agent shall reasonably request, in form and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect substance reasonably satisfactory to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Administrative Agent. Upon the acceptance effectiveness of any such agreement by the Administrative AgentIncremental Commitment, the Aggregate Revolving Commitment Amount shall automatically Commitments and Pro Rata Share of each Lender will be increased by adjusted to give effect to the amount of the Revolving Commitments added through such agreement Incremental Term Loans, as applicable, and Schedule II shall automatically be deemed amended to reflect the accordingly.
(d) If any Incremental Term Loans are to have terms that are different from the existing Term Loans or the Term Loan Commitments or Revolving Commitments of all Lenders after giving effect Commitments, as applicable, outstanding immediately prior to the addition of such incurrence (any such Incremental Term Loans, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among the Borrower, the Lenders providing such Incremental Term Loans and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Non-Conforming Credit Extensions. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan Commitments or Revolving Commitments.
(g) Upon Documents to the extent necessary to give effect to any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not and mechanical changes necessary or advisable in connection therewith (including amendments to ensure pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case allocations of any SOFR Loans and Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate between Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect incurred pursuant to this subclause (xSection), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Term Loan Agreement (Sila Realty Trust, Inc.), Term Loan Agreement (Sila Realty Trust, Inc.)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date but before the termination of this Agreement and in accordance with this Section 2.25, the Borrower maymay from time to time, upon at least 10 daysfive (5) Business Days’ prior written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Commitment”) or (ii) to increase any existing Term Loan or establish one or more incremental new additional term loan commitments loans (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loaneach, an “Incremental Term Loan”); provided, by an that: the aggregate amount of all Incremental Revolving Commitments plus the aggregate initial principal amount all Incremental Term Loans shall not to exceed the sum Maximum Incremental Facility Amount immediately after giving effect to the establishment of (x) any Incremental Revolving Commitment or Incremental Term Loan; any Incremental Revolving Commitment or establishment of an Incremental Term Loan shall be in a minimum principal amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof; no Default or Event of Default shall exist and be continuing at the greater time of (1) $300,000,000 and (2) 100% the establishment of LTM Consolidated EBITDA (any Incremental Revolving Commitment or Incremental Term Loan; the conditions set forth in Section 3.2 shall be satisfied as of the date incurred) and (y) if either of such increase to the Aggregate establishment of any Incremental Revolving Commitments Commitment or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and Loan; the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, provided to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees toForma Compliance Certificate, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment form and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be detail reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withhelddemonstrating compliance with the financial covenants in Article VI after giving effect to such Incremental Revolving Commitment or Incremental Term Loan on a Pro Forma Basis (assuming for purposes hereof, conditioned or delayed. The sum of that the increases in the Aggregate Revolving Commitments of the existing Lenders pursuant to this subsection (cincluding any Incremental Revolving Commitments) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount are fully drawn and funded); provided, that, in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitmentsubject to the Incremental Funds Certain Provision, and any decision by a Lender to increase its Revolving Commitment or provide an such compliance will be determined at the option of the Borrower either (A) at the time of funding of such Incremental Term Loan Commitment Loan, or (B) at the time the applicable Acquisition Agreement is entered into; the Administrative Agent shall be made in its sole discretion independently from any other Lender.
have received all documents (e) An increase in the aggregate amount including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request relating to such Incremental Revolving Commitments or the such establishment of such Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder Loan, all in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.;
Appears in 2 contracts
Sources: Credit Agreement (Aaron's Company, Inc.), Credit Agreement
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, upon at least 10 days’ written notice an “Incremental Commitment”) so long as the following conditions are satisfied:
(or i) the aggregate principal amount of all such shorter period Incremental Commitments made pursuant to this Section shall not exceed $100,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing exist and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on except to the extent any such date, except for representations and warranties that expressly representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be have been true and correct in all material respects (or in all respects, as applicable) on and as of such earlier date;
(iv) the MLP and its Restricted Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if any Borrowing made on the date such Incremental Commitments are established had been funded as of the first day of the relevant period for testing compliance;
(v) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis; and
(vi) all terms and conditions with respect to any such Incremental Commitments shall be the same as those contained in the Loan Documents or otherwise reasonably satisfactory to the Administrative Agent; provided that, solely that any upfront fees paid with respect to such Incremental Commitments may be greater than the upfront fees paid with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or existing Revolving Commitments.
(gb) Upon The Borrower shall provide at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, but is not required to, specify any fees offered to those Lenders that agree to increase the principal amount of their Revolving Commitments (the “Increasing Lenders”), which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Section. No Lender which declines to increase the principal amount of its Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that Commitment may be replaced with respect to this subclause (x)its existing Revolving Commitment as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice, (A) the prepayment to, and borrowing from, any existing such Lender shall be effected by book entry deemed to have declined to increase its Revolving Commitment. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the extent that any Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower and the amount prepaid Administrative Agent shall have discretion jointly to adjust the allocation of such Lender will be subsequently borrowed from such Lender Incremental Commitments among the Increasing Lenders and (B) the existing Additional Lenders. The sum of the increase in the Revolving Loan Lenders, as applicable, and Commitments of the Increasing Lenders plus the Revolving Commitments of the Additional Lenders shall make not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and receive payments among themselves(b) of this Section, any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in a manner form and substance reasonably acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Commitments, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Commitments, and Schedule I shall automatically be deemed amended accordingly.
(d) If the Borrower incurs Incremental Commitments under this Section, the Borrower shall, after such time, repay and incur Revolving Loans ratably as between the Incremental Commitments and the Additional Lenders Revolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding sentence, amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such other Lenders, incurrence and amendments to implement ratable participation in each case who are providing Letters of Credit between the Incremental Commitments and the Revolving Commitments outstanding immediately prior to any such Incremental Term Loan Commitmentincurrence).
Appears in 2 contracts
Sources: Revolving Credit Agreement (Arc Logistics Partners LP), Revolving Credit Agreement (Arc Logistics Partners LP)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Term Loan Commitments hereunder (such increase, upon at least 10 days’ written notice an “Incremental Commitment”) so long as the following conditions are satisfied as of the funding date of such Incremental Commitment (or the “Incremental Effective Date”):
(i) the aggregate principal amount of all such shorter period Incremental Commitments made pursuant to this Section shall not exceed $12,500,000;
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be permitted maybe reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2018, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) any incremental Term Loans made pursuant to this Section (the “Incremental Term Loans”) shall have a Weighted Average Life to Maturity no shorter than that of the Term Loans made pursuant to (and as defined in) the Existing Credit Agreement and continued on such date, except for representations the Closing Date as set forth in Section 2.1;
(v) the Borrower and warranties that expressly relate to an earlier date, which Holdings shall be true and correct in all material respects pro forma compliance with each of the financial covenants set forth in Article VI, after giving effect to any such proposed increase, as of the most recently ended Fiscal Month (or in all respectsFiscal Quarter, as applicable) for which financial statements are required to have been delivered, calculated as if all such Incremental Term Loans had been made as of the first day of the relevant period for testing compliance;
(vi) if the Initial Yield applicable to any such earlier dateIncremental Term Loans exceeds by more than 0.50% per annum the sum of the Applicable Margin then in effect for Eurodollar Loans plus one fourth of the Up-Front Fees paid in respect of the existing Term Loans (the “Existing Yield”), then the Applicable Margin of the existing Term Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum;
(vii) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis; provided that, solely and
(viii) all other terms and conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the establishment Administrative Agent.
(b) The Borrower shall provide at least 5 days’ (or such shorter period as acceptable to Administrative Agent in its sole discretion) advance written notice to the Administrative Agent of any request to establish an Incremental Commitment. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Term Loan Commitment, and any decision by a Lender to increase its Term Loan Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of existing Lenders who desire to increase their Term Loan Commitments entered into in connection with (the financing of a Limited Condition Acquisition, the “Increasing Lenders”) and new Lenders providing such Incremental who desire to provide Term Loan Commitments (the “Additional Lenders”) shall be required for an increase in the aggregate principal amount of the Term Loan Commitments pursuant to this Section. No Lender which declines to increase the principal amount of its Term Loan Commitment may agree be replaced with respect to its existing Term Loans as a result thereof without such Lender’s consent.
(c) Subject to subsections (a) and (b) of this Section, any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent (an “funds certain provision” that:Incremental Joinder Agreement”), executed by the Borrower, the Administrative Agent, each Additional Lender and by each Increasing Lender, setting forth the Incremental Commitments of such Lenders and, if applicable, setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) does not impose as a condition to funding thereof that no Default or Event such evidence of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing appropriate corporate authorization on the Limited Condition Acquisition Test Date part of the Borrower with respect to such Limited Condition Acquisition Incremental Commitment and (y) no Default or Event such opinions of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at counsel for the time Borrower with respect to such Limited Condition Acquisition is consummated; andIncremental Commitment as the Administrative Agent may reasonably request;
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests certificate of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated signed by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business DaysResponsible Officer, in the case of any Base Rate Loans then outstanding, form and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner substance reasonably acceptable to the Administrative Agent, so thatcertifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, after giving effect theretoexecuted promissory notes evidencing such Incremental Term Loans, the Loans of such Lenders are held ratably issued by the Lenders of such Class Borrower in accordance with Section 2.5; and
(v) any other certificates or documents that the respective Commitments Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the funding of each such Class Incremental Commitment, the Term Loans and Pro Rata Share of such Lenders (after giving each Lender will be adjusted to give effect to such Additional Commitment Amount), the Incremental Term Loans and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding Schedule I shall automatically be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitmentsdeemed amended accordingly.
(hd) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination terms and provisions of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be, except as otherwise set forth herein, identical to the existing Term Loans. The scheduled principal payments on the Term Loans to be entitled made pursuant to all Section 2.4 shall be ratably increased after the benefits afforded by, making of any Incremental Term Loans under this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created Section 2.18 by the Loans Documents, except that aggregate principal amount of such Incremental Term Loans may be subordinated in right (subject to customary adjustments to provide for the “fungibility” of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, Loans). Notwithstanding anything to the extent set forth contrary in an amendment to this Agreement as mutually agreed by the BorrowerSection 10.2, the Administrative Agent (together with the consent of the Borrower) is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the Additional requirements in the preceding sentence and amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence) without the consent of any Lender other than the Lenders or such other Lenders, participating in each case who are providing such Incremental Term Loan CommitmentLoans.
(e) For purposes of this Section, the following terms shall have the meanings specified below:
Appears in 2 contracts
Sources: Term Loan Agreement (Root, Inc.), Term Loan Agreement (Root Stockholdings, Inc.)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Funding Availability Date but before the termination of this Agreement and in accordance with this Section 2.25, the Borrower maymay from time to time, upon at least 10 daysfive (5) Business Days’ prior written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Commitment”) or (ii) to establish one or more incremental term loan commitments loans (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loaneach, an “Incremental Term Loan”); provided, by an that:
(i) the aggregate amount of all Incremental Revolving Commitments plus the aggregate initial principal amount all Incremental Term Loans shall not to exceed the sum Maximum Incremental Facility Amount during the term of this Agreement;
(xii) any Incremental Revolving Commitment or establishment of an Incremental Term Loan shall be in a minimum principal amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof;
(iii) no Default or Event of Default shall exist and be continuing at the time of the establishment of any Incremental Revolving Commitment or Incremental Term Loan;
(iv) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (conditions set forth in Section 3.3 shall be satisfied as of the date incurred) and (y) if either of such increase to the Aggregate establishment of any Incremental Revolving Commitments Commitment or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts Loan;
(which for purposes of clarity, do not include any amounts incurred in reliance upon clause (xv) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, provided to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees toForma Compliance Certificate, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment form and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be detail reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withhelddemonstrating compliance with the financial covenants in Article VI after giving effect to such Incremental Revolving Commitment or Incremental Term Loan on a Pro Forma Basis (assuming for purposes hereof, conditioned or delayed. The sum of that the increases in the Aggregate Revolving Commitments of the existing Lenders pursuant to this subsection (cincluding any Incremental Revolving Commitments) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount are fully drawn and funded); provided, that, in the case of a request an Incremental Term Loan subject to increase the Aggregate Revolving Commitments.Incremental Funds Certain Provision, such compliance will be determined at the option of the Borrower either (A) at the time of funding of such Incremental Term Loan, or (B) at the time the applicable Acquisition Agreement is entered into (but not more than ninety (90) days prior to the consummation of such Permitted Acquisition or such later date as Administrative Agent may agree in writing);
(dvi) No the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request relating to such Incremental Revolving Commitments or such establishment of such Incremental Term Loan, all in form and substance reasonably satisfactory to the Administrative Agent;
(vii) (A) the Applicable Margin of each Incremental Term Loan shall be as set forth in the definitive documentation therefor; provided that if the Initial Yield applicable to any such Incremental Term Loans exceeds the sum of the Applicable Margin then in effect for Eurodollar Term Loans plus one fourth of the Up-Front Fees paid in respect of any then existing Term Loans (the “Existing Yield”), then the Applicable Margin of any then existing Term Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield, and (B) any Incremental Term Loans made pursuant to this Section 2.25 shall have a maturity date no earlier than the latest existing Maturity Date or the then applicable Revolving Commitment Termination Date and shall have a Weighted Average Life to Maturity no shorter than any other then-existing Incremental Term Loan;
(viii) any Incremental Revolving Commitments under this Section 2.25 shall have terms identical to those for the Revolving Commitments under this Agreement, other than with respect to the payment of Up-Front Fees;
(ix) no Lender (or any successor thereto) shall have any obligation to increase its provide any Incremental Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an any Incremental Term Loan CommitmentLoan, and any decision by a Lender to increase its provide any Incremental Revolving Commitment or provide an any Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.;
(ex) An increase in the aggregate amount Borrower may designate a bank or other financial institution that is not already a Lender to provide all or any portion of the any Incremental Revolving Commitments or the establishment of an Incremental Term Loan Commitments Loan, so long as (i) such Person (an “Additional Lender”) becomes a party to this Agreement pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement lender joinder agreement or joinder other document in form and substance reasonably satisfactory to the Administrative Agent that has been executed by the Borrower and such Additional Lender, (ii) any such Person proposed by each the Borrower to become an Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to must be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and, if such Additional Lender is to provide a Revolving Commitment, each of the Issuing Banks and the Swingline Lender;
(xi) any Incremental Revolving Commitments or establishment of an Incremental Term Loan shall be pursuant to an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Revolving Commitments or Incremental Term Loan, as applicable (each an “Incremental Facility Amendment”), and upon the effectiveness of such Incremental Facility Amendment pursuant to the terms thereof, the Commitments, as applicable, shall automatically be increased by the amount of the Commitments added through such Incremental Facility Amendment and Schedule 1.1(a) shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the addition of such Commitments;
(xii) with respect to any Incremental Revolving Commitments, (i) if any Revolving Loans are outstanding upon giving effect to any Incremental Revolving Commitments, the Borrower shall, if applicable, prepay one or more existing Revolving Loans (such prepayment to be subject to Section 2.20) in an amount necessary such that after giving effect to such Incremental Revolving Commitments, each Lender will hold its Pro Rata Share of outstanding Revolving Loans and (ii) effective upon such increase, the interest ratesamount of the participations held by each Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, maturityafter giving effect to such adjustments, mandatory prepayment provisions the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments;
(xiii) the Borrower shall pay any applicable upfront or arrangement fees in connection with such Incremental Revolving Commitments or Incremental Term Loan;
(xiv) subject to the limitations set forth in Section 2.25(a)(vii), the amortization or other repayment requirements, the pricing and amortization schedule the use of proceeds applicable to any such Incremental Term Loan shall in each case be set forth in the definitive documentation with respect to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Loan;
(xv) any such Incremental Revolving Commitment or Incremental Term Loan shall (A) rank pari passu in right of payment as the other Loans and Commitments. In connection , (B) not be guaranteed by any Person that is not a Guarantor, and (C) if the Trigger Event has not occurred, shall be unsecured and, if the Trigger Event has occurred, shall be secured by the Collateral on a pari passu basis with the foregoing, existing Obligations;
(xvi) all other terms and notwithstanding anything in Section 10.2 conditions with respect to the contrary, any such Incremental Revolving Commitments shall be reasonably satisfactory to the Administrative Agent, the BorrowerIssuing Bank and the Swingline Lender; and
(xvii) all other terms and conditions with respect to any such Incremental Term Loan shall be set forth in the applicable Incremental Facility Amendment and be reasonably satisfactory to the Lenders providing such Incremental Term Loan.
(b) Upon the effectiveness of any such Incremental Revolving Commitment or any Incremental Term Loan, the Guarantors Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Additional Lenders or existing Lenders participating in Incremental Revolving Commitments and/or the Additional Commitment AmountIncremental Term Loans, as applicable, may enter into such amendments to this Agreement as may and Schedule 1.1(a) shall automatically be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lendersdeemed amended accordingly.
(ic) Notwithstanding anything to the contrary in this Section 2.25, if the proceeds of any Incremental Term Loan are being used to finance a Permitted Acquisition made pursuant to an acquisition agreement, binding on Holdings, the Borrower or any of its Restricted Subsidiaries, entered into in advance of the consummation thereof that does not provide for a “financing out” (an “Acquisition Agreement”), and the Borrower has obtained on or prior to the closing thereof binding commitments of Lenders and/or Additional Lenders to fund such Incremental Term Loan, then the conditions to the funding and incurrence of any such Incremental Term Loan may, at the option of the Borrower, be limited as follows: (A) the condition set forth in Section 3.23.3(b) shall apply only with respect to Specified Representations, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and (B) all representations and warranties of each Loan Party (excluding for the avoidance of doubt any target entities or subsidiaries thereof to be acquired in connection with any Permitted Acquisition) set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on at the date the applicable Acquisition Agreement is executed and delivered; provided, that to the extent such representation or warranty relates to a specific prior date, except for representations and warranties that expressly relate to an earlier date, which such representation or warranty shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects, as applicable) only as of such earlier specific prior date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (yC) the representations and warranties in the Acquisition Agreement made by or with respect to the applicable target in Person or assets subject to the Limited Condition Permitted Acquisition Agreement that are material to the interests of the LendersLenders shall be true and correct in all material respects, but only to the extent that Holdings, the Borrower (or and/or any of its Restricted Subsidiaries) , as applicable, has the right to terminate the Borrower’s (its or such Restricted Subsidiary’s) their obligations under such Limited Condition the Acquisition Agreement or to decline to not consummate the transactions contemplated by such Limited Condition Permitted Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement and (D) the reference to “no Default or Event of Default” in Section 3.3(a) shall mean (1) the failure absence of such representations a Default or warranties to be true and correct or to satisfy Event of Default at the closing conditions in such Limited Condition date the applicable Acquisition Agreement is executed and delivered and (2) the absence of a Specified Event of Default at the date the applicable Permitted Acquisition is consummated. For purposes of clarity, the establishment of Incremental Revolving Commitments shall not be subject at any time to such representations or warranties).
(f) Upon the acceptance Incremental Funds Certain Provision. Nothing in the foregoing constitutes a waiver of any such agreement by Default or Event of Default under this Agreement or of any rights or remedies of Lenders and the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount Agent under any provision of the Revolving Commitments added through such agreement Loan Documents. The provisions of this paragraph are collectively referred to in this Agreement as the “Incremental Funds Certain Provision”. For purposes of determining compliance on a Pro Forma Basis with the financial covenants in Article VI or other ratio requirement under this Agreement, or whether a Default or Event of Default has occurred and Schedule II shall automatically be deemed amended to reflect is continuing, in each case in connection with the consummation of an Acquisition using proceeds from an Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect that qualifies to be subject to the addition Incremental Funds Certain Provision, the date of determination shall, at the option of the Borrower, be (A) the date of funding of such Incremental Term Loan Commitments Loan, or Revolving Commitments.
(gB) Upon any increase in the aggregate amount date of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case execution of any Base Rate Loans then outstandingsuch Acquisition Agreement, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower such determination shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments be made after giving effect to such increaseAcquisition (and the other transactions to be entered into in connection therewith, until including any incurrence of Indebtedness and the use of proceeds thereof) on a Pro Forma Basis, and, for the avoidance of doubt, if such time financial covenants or other ratio requirement is subsequently breached as all outstanding Revolving Loans are held by a result of fluctuations in the Revolving Loan Lenders ratio that is subject of such financial covenants or other ratio requirement (including due to fluctuations in proportion Consolidated EBITDA of Holdings, the Borrower and its Restricted Subsidiaries on a consolidated basis or the EBITDA (calculated in a manner consistent with the calculation of Consolidated EBITDA) of the acquired Person or assets), at or prior to their respective Commitments after giving effect the consummation of such Acquisition (and the other transactions to be entered into in connection therewith), such increase)financial covenants or other ratio requirement will not be deemed to have been breached as a result of such fluctuations solely for the purpose of determining whether such Acquisition (and the other transactions to be entered into in connection therewith) constitutes a Permitted Acquisition; provided provided; that with respect to this subclause (x) if the Borrower elects to have such determination occur at the time of entry into the applicable Acquisition Agreement (and not at the time of consummation of the Acquisition), (AI) the prepayment to, and borrowing from, any existing Lender Incremental Term Loan to be incurred shall be effected by book entry deemed incurred at the time of such election (unless the applicable Acquisition Agreement is terminated without actually consummating the applicable Permitted Acquisition, in which case such Acquisition and related Incremental Term Loan will not be treated as having occurred) and outstanding thereafter for purposes of calculating compliance, on a Pro Forma Basis, with any applicable financial covenants or other ratio requirement in this Agreement (even if unrelated to the extent that any portion determining whether such Acquisition is a Permitted Acquisition) and (II) such Permitted Acquisition must close within ninety (90) days (or such later date as Administrative Agent may agree in writing) of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) signing of the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), applicable Acquisition Agreement and (y) effective upon such increase, EBITDA (calculated in a manner consistent with the amount calculation of Consolidated EBITDA) of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding acquired business shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class disregarded for any all purposes under this Agreement. Any Incremental Term Loans shall be entitled to all Agreement other than determining whether such Acquisition is a Permitted Acquisition until the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that consummation of such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan CommitmentPermitted Acquisition.
Appears in 2 contracts
Sources: Credit Agreement (Aaron's Company, Inc.), Credit Agreement (Aaron's Company, Inc.)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower may, upon at least 10 days’ written notice and one or more Increasing Lenders or Additional Lenders (or such shorter period each as defined below) may be permitted by enter into an agreement to increase the Administrative Agent in its sole discretion) to aggregate principal amount of the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) and/or establish one or more incremental term loan commitments new tranches of Incremental Term Loan Commitments hereunder (any each such incremental term loan commitmentincrease or additional tranche, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio following conditions are satisfied:
(determined (1i) after giving effect the aggregate principal amount of all such Incremental Commitments made pursuant to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with this Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) exceed $800,000,000 (the principal amount of any each such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)Incremental Commitment, the “Additional Incremental Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an each such Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate a minimum amount of the Revolving Commitments $10,000,000 or the establishment increments of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder $5,000,000 in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and excess thereof;
(ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.[Reserved];
(iiii) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofCommitment, (x) no Default or Event of Default shall have occurred exist; provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Commitment and the Administrative Agent may agree that such condition shall be continuing and limited to an absence of an Event of Default as of the date of the execution of the definitive documentation with respect to such Acquisition, (y) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on as of the date of the establishment of such dateIncremental Commitment (or, except for representations and warranties that expressly relate if such representation or warranty relates to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date); provided that, solely with respect to that in the establishment case of any Incremental Term Loan Commitments entered into in connection with Commitment obtained for the purposes of financing of a Limited Condition Acquisitionan Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Term Loan Commitments Commitment may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof such Incremental Commitment (and the Incremental Term Loans or Revolving Loans provided thereunder) shall be (xI) certain “specified representations” agreed to by the Lenders providing such Commitments Specified Representations and (yII) the representations and warranties made by or with respect to on behalf of the applicable target in the Limited Condition purchase, acquisition or similar agreement governing such Acquisition Agreement that or other Investment as are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted the Borrower’s applicable Affiliates or Subsidiaries) has the right (determined without regard to any notice requirement) not to consummate or the right to terminate (or cause the termination of) the Borrower’s (or such Restricted Subsidiary’sAffiliates’ or Subsidiaries’) obligations under such Limited Condition Acquisition Agreement purchase, acquisition or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement other agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement purchase, acquisition or other agreement (or the failure of such representations or warranties to be true and correct accurate or to satisfy the closing conditions in such Limited Condition Acquisition Agreement purchase, acquisition or other agreement applicable to such representations or warranties).
) (f) Upon the acceptance of any such agreement by the Administrative Agentrepresentations and warranties, the Aggregate Revolving Commitment Amount shall automatically be increased by “Specified Target Representations”) and (z) to the amount extent there is a condition that no Material Adverse Effect exists as of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect date of the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition initial funding of such Incremental Term Loan Commitments Commitment, such condition shall be limited to the target of such Acquisition or Revolving Commitments.Investment, in such manner and to the extent required to be satisfied under the definitive documentation with respect to such Acquisition;
(giv) Upon (x) any increase in the aggregate amount of the Revolving Commitments incremental Term Loans made pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders(the “Incremental Term Loans” and, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month commitments with respect thereto, the “Incremental Term Loan Commitments”) shall have a maturity date no earlier than the Revolving Commitment Termination Date in effect at the case time such Incremental Term Loans are incurred and shall have a Weighted Average Life to Maturity no shorter than that of any Index Rate previously established Incremental Term Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after (without giving effect to previous reductions in and previously made amortization payments on such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amountpreviously established Incremental Term Loans), and (y) effective upon any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have identical terms (including pricing and termination date; provided that upfront fees for any Incremental Revolving Commitments will be permitted and shall be determined by the Borrower and the Lenders providing such increaseIncremental Revolving Commitments) to the Revolving Commitments and be treated as the same Class as the Revolving Commitments and the Borrower shall, after the amount establishment of any Incremental Revolving Commitments pursuant to this Section, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such increase (provided that such repayment and incurrence may, with the Administrative Agent’s consent, be effectuated through assignments among Lenders with Revolving Commitments, which shall not require an Assignment and Acceptance and may be effectuated by the Administrative Agent through changes in the Register and fundings from such Lenders providing Incremental Commitments); provided, further, that Interest Periods applicable to Incremental Term Loans or Revolving Loans advanced pursuant to Incremental Revolving Commitments may, at the election of the participations held by each Administrative Agent and the Borrower, be made with Interest Period(s) identical to the then remaining Interest Period(s) applicable to existing Term Loans of the relevant Class or existing Revolving Loan Lender in each Letter Loans of Credit then outstanding the applicable Class (and allocated to such Interest Period(s) on a proportional basis); and
(v) the Borrower and its Subsidiaries shall be adjusted automatically such thatin pro forma compliance with each of the Financial Covenants, calculated after giving effect to the funding of such adjustmentsIncremental Term Loans or Incremental Revolving Commitments (assuming such Incremental Revolving Commitments were fully funded), as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered or were required to have been delivered pursuant to Section 5.1(a) or 5.1(b) (including giving effect to the use of proceeds thereof and to any Acquisition consummated after the end of the such Fiscal Quarter and on or prior to such date which is funded with such Incremental Term Loans or Incremental Revolving Commitments); provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Commitment may agree that such pro forma compliance shall hold participations in each be tested as of the date of the execution of the definitive documentation with respect to such Letter of Credit in proportion to their respective Revolving CommitmentsAcquisition.
(hb) The Additional Borrower shall provide at least ten (10) Business Days’ (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or provide Incremental Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or the principal amount of the Incremental Term Loan Commitment such Lender is willing to provide, as applicable. No Lender (or existing Lenders providing any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or provide an Incremental Term Loan Commitment shall be included made in its sole discretion independently from any determination other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Required Lenders and such Lenders will not constitute Revolving Commitments and/or the establishment of a separate voting class for any purposes under this Agreement. Any tranche of Incremental Term Loan Commitments, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicable, as a result thereof without such ▇▇▇▇▇▇’s consent. The Borrower may accept some or all of the offered amounts from existing Lenders or designate new lenders that are acceptable to the Administrative Agent (any such consent (x) to be required only to the extent required under Section 10.4(b) for an assignment of Loans shall or Commitments of such Type to such new lender and (y) not to be entitled to all the benefits afforded by, this Agreement unreasonably withheld) and the other Loan DocumentsBorrower as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), and shall, without limiting which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower shall have discretion to adjust the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders (as it may elect). The sum of the increase in the principal amount of the Revolving Commitments and the aggregate principal amount of the Incremental Term Loan Commitments of the Increasing Lenders plus the principal amount of the Revolving Commitments and the aggregate principal amount of the Term Loan Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any increase requested by the Borrower shall be subordinated effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder (each, an “Incremental Commitment Joinder”), in right form and substance reasonably acceptable to the Administrative Agent, executed by the Administrative Agent, by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Revolving Commitments and/or Incremental Term Loan Commitments, as applicable, of paymentsuch Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Liens securing Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans may be subordinated Loans, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request in connection with and at the time of any such proposed increase. Upon the effectiveness of any such Incremental Term Loans may Commitment, the Commitments and Pro Rata Share of each Lender will be unsecured, in each case, adjusted to give effect to the extent Incremental Revolving Commitments and/or the Incremental Term Loans, as applicable, and Schedule I shall automatically be deemed amended accordingly.
(d) If any Incremental Term Loan Commitments are to be established pursuant to this Section, other than as set forth herein, all terms with respect thereto shall be as set forth in an amendment the applicable Incremental Commitment Joinder, the execution and delivery of which agreement shall be a condition to this Agreement as mutually agreed by the Borrowereffectiveness of the establishment of the Incremental Term Loan Commitments. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent and the Additional Lenders or such other Lenders, Borrower are expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase in each case who are providing such Revolving Commitments and/or establishment of a new Incremental Term Loan CommitmentCommitment pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding sentence or the foregoing clause (a)(iv)(y) of this Section, amendments to ensure pro rata allocations of SOFR Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) This Section 2.23 shall supersede any provisions in Section 2.21 or Section 10.2 to the contrary.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (CareTrust REIT, Inc.), Credit and Guaranty Agreement (CareTrust REIT, Inc.)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 200,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
, provided that (bi) In any new lenders are approved by the case Administrative Agent and the Lead Arrangers (such approval not to be unreasonably withheld), (ii) no Commitment of a request to increase any Lender shall be increased without the Aggregate Revolving Commitmentsconsent of such Lender, each Revolving Loan and (iii) the Borrower is in compliance with Section 3.2, Article IV, Article V, Article VI, Article VII and Section 8.1. Each Lender shall have the right for a period of 5 Business Days 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments Lender (or any successor thereto) shall increase have any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect obligation to increase its Revolving Commitment pursuant or its other obligations under this Agreement and the other Loan Documents, and any decision by a Lender to subsection (a) of this Section 2.24, increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment.
(b) The Borrower may also designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative AgentAgent and the Co-Syndication Agents, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.23 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent and the Co-Syndication Agents executed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, hereof and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent or any Co-Syndication Agents may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement supplement or joinder and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.23 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Revolving Credit Agreement (International Speedway Corp), Revolving Credit Agreement (International Speedway Corp)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date and provided that the Borrower shall have received all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law, or by any Contractual Obligation of Borrower, Borrower may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) up to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
(b) In . All Additional Commitments shall have the case of a request same terms and conditions applicable to increase the Aggregate Revolving CommitmentsCommitments established on the Closing Date, each Revolving Loan including without limitation, as to yield, maturity and amortization. Each Lender shall have the right right, for a period of 5 Business Days 20 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC its Commitment or its other obligations under this Agreement and the Swingline Commitmentother Credit Documents, and any decision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.242.21, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments Aggregate Commitment Amount pursuant to this Section 2.24 2.21 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan existing Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added or increased through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition and increase of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments Aggregate Commitment Amount pursuant to this Section 2.24 2.21 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Atmos Energy Corp), Revolving Credit Agreement (Atmos Energy Corp)
Increase of Commitments; Additional Lenders. (a) The Borrower mayshall have the right, from time to time, upon at least 10 daysfive (5) Business Days’ prior written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of or such shorter notice to each Revolving Loan Lenderas the Administrative Agent may agree in its sole discretion), propose to (i) increase either the Aggregate Acquisition Revolving Commitments or and/or Aggregate Working Capital Revolving Commitments (ii) establish one or more incremental term loan commitments (any each such incremental term loan commitmentincrease, an “Incremental Term Loan CommitmentRevolver Increase”), and/or establish one (1) to make an incremental or more additional term loan loans (any each such incremental term loan, an “Incremental Term Loan”; and each Incremental Term Loan, together with each Incremental Revolver Increase, an “Incremental Commitment”), by an aggregate amount not up to exceed the sum of Fifty Million Dollars (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (250,000,000) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a aggregate principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrowerprovided, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (xa) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect date on which such Incremental Revolver Increase or Incremental Term Loan is to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), become effective;
(b) any such Incremental Commitment shall be in a minimum amount of $5,000,000, and in integral multiples of $1,000,000 in excess thereof (or such lesser amounts as the Administrative Agent may agree in its discretion), ;
(h), c) any such Incremental Commitment shall be effective only upon receipt by the Administrative Agent of: (i) additional Acquisition Revolving Commitments or Working Capital Revolving Commitments, as applicable, in a corresponding amount of such requested increase in the Aggregate Acquisition Revolving Commitments and/or Working Capital Revolving Commitments, or Incremental Term Loan Commitments, as applicable, from either existing Lenders and/or one (j1) or more other institutions that qualify as assignees under Section 11.4 (each such institution, an “Additional Lender”); and (ii) documentation from each existing Lender or Additional Lender providing an Incremental Commitment evidencing its agreement to provide an Incremental Commitment and its acceptance of the obligations under this Agreement, in form and substance reasonably acceptable to the Administrative Agent; provided, that, any increase in the Aggregate Working Capital Revolving Commitments must be from new or existing Lenders acceptable to each of the Administrative Agent, the Issuing Bank and the Swingline Lender (such approval not to be unreasonably withheld or delayed);
(d) the Administrative Agent shall have occurred received resolutions of the board of directors (or other applicable governing body or Person) of the Loan Parties, secretary’s certificates of the Loan Parties, closing certificates, opinions of counsel to the Loan Parties and other documents reasonably requested by the Administrative Agent, or required to be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to provided by the Lenders providing such Commitments Incremental Commitment, all in form and (y) the representations and warranties made by or with respect substance reasonably satisfactory to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent;
(e) the Administrative Agent shall have received a Pro Forma Compliance Certificate demonstrating (i) compliance with the financial covenants hereunder, and (ii) that the Aggregate Revolving Commitment Amount shall automatically be increased by the amount Consolidated Net Leverage Ratio, calculated as of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments date of all Lenders after giving effect to the addition incurrence of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that Commitment, is not pro rata among all Revolving Loan Lenders, (x) within five Business Daysgreater than 3.00:1.00, in the case of any Base Rate Loans then outstandingeach of clauses (i) and (ii), and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increaseIncremental Revolver Increase (assuming, until for purposes of such time demonstration, that all revolving Commitments, as all outstanding increased, are fully drawn) or Incremental Term Loan on a Pro Forma Basis, in form and substance reasonably satisfactory to the Administrative Agent;
(f) if any Acquisition Revolving Loans are held by the or Working Capital Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan LendersLoans, as applicable, and are outstanding at the Additional Lenders shall make and receive payments among themselvestime of the increase in the Aggregate Acquisition Revolving Commitments or the Aggregate Working Capital Revolving Commitments, the Borrower shall, if applicable, prepay one (1) or more existing Acquisition Revolving Loan(s) or Working Capital Revolving Loan(s), as applicable (such prepayment to be subject to Section 2.19), in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the an amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically necessary such that, after giving effect to such adjustmentsIncremental Revolver Increase, each Lender will hold its Pro Rata Share of outstanding Acquisition Revolving Loans or Working Capital Revolving Loans, as applicable;
(g) any increase in the Aggregate Acquisition Revolving Commitments or Aggregate Working Capital Revolving Commitments under this Section 2.23 shall have terms identical to those for the Acquisition Revolving Loans or Working Capital Revolving Loans, as applicable, under this Agreement, except for fees payable to the Lenders shall hold participations in each providing commitments for such Letter of Credit in proportion to their respective Revolving Commitments.Incremental Revolver Increase;
(h) The Additional Lenders or existing Lenders providing an amortization, pricing and use of proceeds applicable to any Incremental Term Loan Commitment shall be included as set forth in the definitive documentation therefor, provided, that: (i) any determination such Incremental Term Loan shall have a final maturity date that is coterminous with, or later than, the Working Capital Revolving Commitment Termination Date and each applicable Maturity Date of each then-outstanding Term Loan; (ii) the Weighted Average Life to Maturity of such Incremental Term Loan shall not be less than the Weighted Average Life to Maturity of the Required Lenders and such Lenders will not constitute a separate voting class for Term Loan A, or of any purposes under this Agreement. Any other then-existing Incremental Term Loans Loan; and (iii) the All-In Yield applicable to such Incremental Term Loan shall not be entitled more than one half of one percent (0.50%) higher than the corresponding All-In Yield applicable to the Term Loan A, or to any then-outstanding Incremental Term Loan (it being understood that interest on the Term Loan A and any existing Incremental Term Loan may be increased to the extent necessary to satisfy this requirement);
(i) all conditions precedent to the benefits afforded bymaking of a Loan and/or the issuance of a Letter of Credit set forth in Section 3.2 shall have been satisfied at the time of establishment of any Incremental Revolver Increase (even if there is no Borrowing thereunder on such date);
(j) no Lender (or any successor thereto) shall have any obligation to increase its Acquisition Revolving Commitment, its Working Capital Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such or to provide any portion of any Incremental Term Loans may be subordinated in right Loan, and any decision by a Lender to increase its Acquisition Revolving Commitment, its Working Capital Revolving Commitment, or to provide any portion of payment, the Liens securing such any Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecuredLoan, shall, in each case, be made in its sole discretion independently from any other Lender; and
(k) neither the Arrangers nor any Lender shall have any responsibility for arranging any such Incremental Commitment without their prior written consent and subject to such conditions, including fee arrangements, as they may provide in connection therewith. Notwithstanding anything to the extent set forth contrary in an amendment this Section 2.23, in the case of any Incremental Term Loan to this Agreement as mutually agreed by be provided in connection with a Limited Condition Acquisition, at the sole election of the Borrower, the Administrative Agent and conditions in clauses (a) and/or (i) above may be subject to Section 1.7. Notwithstanding anything to the Additional Lenders or such other Lenderscontrary in any Loan Document, in each case who are providing such no event shall any Incremental Term Loan CommitmentRevolver Increase pursuant to this Section 2.23 be subject to Section 1.7.
Appears in 2 contracts
Sources: Credit Agreement (Rotech Healthcare Holdings Inc.), Credit Agreement (Rotech Healthcare Holdings Inc.)
Increase of Commitments; Additional Lenders. (a) The Borrower mayIncrease of the Revolving Loan Commitments.
(i) So long as no Event of Default has occurred and is continuing, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent Borrower, on behalf of Borrowers, may request the right to effectuate increases in its sole discretion) the Revolving Loan Commitments (any such increase, a “Commitment Increase”), in an aggregate amount of up to $50,000,000 for all such Commitment Increases (the “Commitment Increase Cap”), during the term of this Agreement by delivering a Notice of Requested Commitment Increase to the Administrative Agent substantially in the form of Exhibit J (who shall promptly provide a copy “Notice of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term LoanRequested Commitment Increase”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisitionprovided that, in accordance with Section 1.7(a)each case: (A) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which each Commitment Increase shall be in minimum increments of $10,000,000), ; (B) the “Additional proposed Commitment Amount”).
(b) In Increase shall have been consented to in writing by the case of a request to increase the Aggregate Revolving CommitmentsAdministrative Agent, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase (if any) who is increasing its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned Agent that has agreed to become a Lender in respect of all or delayed. The sum a portion of the increases in Commitment Increase (a “New Lender”); (C) the pricing and other terms applicable to the Commitment Increase shall be the same as those applicable to the existing Revolving Commitments Loan Commitments; (D) the proposed Commitment Increase, together with any prior Commitment Increase, shall not exceed the Commitment Increase Cap; (E) Availability, measured on a pro forma basis after giving effect to the Commitment Increase, for the five consecutive Business Days prior to the Commitment Increase is at least $20,000,000; and (F) the Fixed Charge Coverage Ratio as of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments end of the Additional Lenders fiscal month most recently ended for which the Administrative Agent has received financial statements at the time of the Commitment Increase, for the period of the immediately preceding twelve (12) months, of not less than 1.00:1.00. Each Notice of Requested Commitment Increase shall not in specify: (1) the aggregate exceed the unsubscribed amount of the Additional proposed Commitment Amount Increase and (2) the requested date of the proposed Commitment Increase (which shall be at least thirty (30) days from the date of delivery of the Notice of Requested Commitment Increase). Each Notice of Requested Commitment Increase shall be binding on all Borrowers. Upon the effective date of any Commitment Increase, the Administrative Borrower shall deliver to the Administrative Agent a certificate of the chief financial officer of the Administrative Agent certifying that no Default or Event of Default then exists or would be caused thereby and that the conditions set forth in clause (D), (E) and (F) are satisfied. No Commitment Increase shall be effective until the case Administrative Agent shall have received amendments to this Agreement and the other Loan Documents, commitments of Lenders or New Lenders in an aggregate amount equal to such Commitment Increase, agreements for each Lender or New Lender committing to such Commitment Increase (each, a request “Lender Agreement”), any upfront fees to increase be paid to the Aggregate Lenders committing to such Commitment Increase, and such opinion letters, Revolving CommitmentsLoan Notes and other agreements, documents and instruments requested by and reasonably satisfactory to the Administrative Agent in its reasonable discretion evidencing and setting forth the conditions of such Commitment Increase.
(dii) If the Administrative Agent approves a proposed Commitment Increase, the Administrative Agent shall deliver a copy of the Notice of Requested Commitment Increase relating thereto to each Lender. No Lender (or any successor thereto) shall have any obligation to increase its Revolving Loan Commitment or its other obligations under this Agreement and or the other Loan Documents or provide an Incremental Term Loan CommitmentDocuments, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase . If the Administrative Agent receives commitments from the Lenders or the New Lenders in excess of the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving proposed Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the BorrowerIncrease, the Administrative Agent and shall have the Additional Lenders or such other Lendersright, in its sole discretion, to reduce and reallocate (within the minimum and maximum amounts specified by each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable Lender or New Lender in its notice to the Administrative Agent and (iiAgent) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to shares of such Incremental Term Loans shall be determined by the Borrower and Commitment Increase of the Lenders holding or New Lenders willing to fund the Incremental Term Loan Commitmentsproposed Commitment Increase so that the total committed shares of the proposed Commitment Increase equals the proposed Commitment Increase. In connection with The Administrative Agent shall notify each Lender or New Lender, as the foregoingcase may be, whether its proposed share of the proposed Commitment Increase has been accepted and, if so, the amount of its share of such Commitment Increase, and notwithstanding anything in Section 10.2 such Lender shall thereafter execute and deliver a Lender Agreement with respect to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional its respective share of such Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional LendersIncrease.
(iiii) Notwithstanding anything to the contrary contained herein, each Commitment Increase meeting the conditions set forth in Section 3.2, an increase in 2.17(a)(i) shall not require the aggregate amount consent of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (any Lender other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materialityLenders, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier dateif any, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect have agreed to the establishment of Incremental Term increase their Revolving Loan Commitments entered into in connection with such Commitment Increase and shall not constitute an amendment, modification or waiver that is subject to Section 11.12 and shall be effective as of the financing later of a Limited Condition Acquisition, (a) the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event date specified in the applicable Notice of Default (other than any Default or Event of Default under Section 8.1(a), Requested Commitment Increase and (b), (h), (i) or (j)) the date upon which the foregoing conditions shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default been satisfied or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to waived by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders which have agreed to increase their Revolving Loan Commitments, or such other Lendersby the Required Lenders in accordance with Section 11.12 in the case of a waiver of an Event of Default, in each case who are providing such Incremental Term Loan Commitmentas applicable.
Appears in 2 contracts
Sources: Credit Agreement (Haverty Furniture Companies Inc), Credit Agreement (Haverty Furniture Companies Inc)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to request incremental term loans hereunder (each such increase, upon at least 10 days’ written notice an “Incremental Commitment”) so long as the following conditions are satisfied:
(or i) the aggregate principal amount of all such shorter period Incremental Commitments made pursuant to this Section shall not exceed $300,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2020, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) on any incremental term loans made pursuant to this Section (the “Incremental Term Loans”) shall (1) not mature earlier than the existing Term Loans and Incremental Term Loans and (2) have no amortization or otherwise be permitted to be prepaid prior to the latest existing Maturity Date of any Term Loans or any tranche of Incremental Term Loans;
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such dateIncremental Term Loans had been made as of the first day of the relevant period for testing compliance;
(vi) All Incremental Term Loans (i) shall rank pari passu in right of payment with the Term Loans and any existing Incremental Term Loans, except for representations (ii) shall be equally and warranties ratably secured with the Term Loans and existing Incremental Term Loans, and (iii) shall be treated substantially the same (and in any event, not more favorably than) the Term Loans and any existing Incremental Term Loans; and
(vii) all other terms and conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrower shall provide at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that expressly relate agree to an earlier dateprovide Incremental Term Loans, which fees may be variable based upon the amount by which any such Lender is willing to provide Incremental Term Loans. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to provide Incremental Term Loans, and any decision by a Lender to provide Incremental Term Loans shall be true and correct made in all material respects (or in all respectsits sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for the Incremental Term Loans, as applicable) as of such earlier date; provided that, solely pursuant to this Section. No Lender which declines to provide Incremental Term Loans may be replaced with respect to the establishment of its existing Term Loans and/or its Incremental Term Loan Commitments entered into Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in connection writing about whether it will provide Incremental Term Loans within 15 days after receipt of such notice, such Lender shall be deemed to have declined to provide Incremental Term Loans, as applicable. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the financing “Additional Lenders”), which Additional Lenders may assume all or a portion of a Limited Condition Acquisition, such Incremental Commitment. The Borrower and the Lenders providing Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Term Loan Commitments may agree Loans among the Increasing Lenders and the Additional Lenders. The sum of all Incremental Term Loans of the Increasing Lenders plus the Incremental Term Loans of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to paragraphs (a) and (b) of this Section, any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth any new Incremental Term Loans, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a “funds certain provision” that:party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) does not impose as a condition to funding thereof that no Default or Event such evidence of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing appropriate corporate authorization on the Limited Condition Acquisition Test Date part of the Borrower with respect to such Limited Condition Acquisition Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(yiii) no Default a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in paragraph (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or Event of Default under any Increasing Lender, executed promissory notes evidencing such Incremental Term Loans, issued by the Borrower in accordance with Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated2.10; and
(iiiv) provides any other certificates or documents that the only representations Administrative Agent shall reasonably request, in form and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect substance reasonably satisfactory to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Administrative Agent. Upon the acceptance effectiveness of any such agreement by the Administrative AgentIncremental Commitment, the Aggregate Revolving Commitment Amount shall automatically Commitments and Pro Rata Share of each Lender will be increased by adjusted to give effect to the amount of the Revolving Commitments added through such agreement Incremental Term Loans, as applicable, and Schedule II shall automatically be deemed amended to reflect the accordingly.
(d) If any Incremental Term Loans are to have terms that are different from the existing Term Loans or the Term Loan Commitments or Revolving Commitments of all Lenders after giving effect Commitments, as applicable, outstanding immediately prior to the addition of such incurrence (any such Incremental Term Loans, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among the Borrower, the Lenders providing such Incremental Term Loans and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Non-Conforming Credit Extensions. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan Commitments or Revolving Commitments.
(g) Upon Documents to the extent necessary to give effect to any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not and mechanical changes necessary or advisable in connection therewith (including amendments to ensure pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case allocations of any SOFR Loans and Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate between Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect incurred pursuant to this subclause (xSection), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Term Loan Agreement (Sila Realty Trust, Inc.), Term Loan Agreement (Sila Realty Trust, Inc.)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 50,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan . Each Lender shall have the right for a period of 5 Business Days 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.242.23, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.23 shall become effective upon the receipt by the Administrative Agent of a an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving together with Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentCommitments, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of in-house counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement supplement or joinder and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.23 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Newmarket Corp), Revolving Credit Agreement (Newmarket Corp)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Effective Date but before the termination of this Agreement and in accordance with this Section 2.25, the Borrower maymay from time to time, upon at least 10 daysfive (5) Business Days’ prior written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Commitment”) or (ii) to establish one or more incremental new additional term loan commitments loans (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loaneach, an “Incremental Term Loan”); provided, by an that:
(i) the aggregate amount of all Incremental Revolving Commitments plus the aggregate initial principal amount all Incremental Term Loans shall not to exceed the sum Maximum Incremental Facility Amount during the term of this Agreement;
(xii) any Incremental Revolving Commitment or establishment of an Incremental Term Loan shall be in a minimum principal amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof;
(iii) no Default or Event of Default shall exist and be continuing at the time of the establishment of any Incremental Revolving Commitment or Incremental Term Loan;
(iv) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (conditions set forth in Section 3.2 shall be satisfied as of the date incurred) and (y) if either of such increase to the Aggregate establishment of any Incremental Revolving Commitments Commitment or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts Loan;
(which for purposes of clarity, do not include any amounts incurred in reliance upon clause (xv) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, provided to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees toForma Compliance Certificate, in the case of any such Person that is form an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be detail reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withhelddemonstrating compliance with the financial covenants in Article VI after giving effect to such Incremental Revolving Commitment or Incremental Term Loan on a Pro Forma Basis (assuming for purposes hereof, conditioned or delayed. The sum of that the increases in the Aggregate Revolving Commitments of the existing Lenders pursuant to this subsection (cincluding any Incremental Revolving Commitments) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount are fully drawn and funded); provided, that, in the case of a request an Incremental Term Loan subject to increase the Aggregate Revolving Commitments.Incremental Funds Certain Provision, such compliance will be determined at the option of the Borrower either (A) at the time of funding of such Incremental Term Loan, or (B) at the time the applicable Acquisition Agreement is entered into (but not more than ninety (90) days prior to the consummation of such Permitted Acquisition or such later date as Administrative Agent may agree in writing);
(dvi) No Lender the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request relating to such Incremental Revolving Commitments or such establishment of such Incremental Term Loan, all in form and substance reasonably satisfactory to the Administrative Agent;
(vii) the Applicable Margin of each Incremental Term Loan shall be as set forth in the definitive documentation therefor; provided that (A) if the Initial Yield applicable to any such Incremental Term Loans exceeds the sum of the Applicable Margin then in effect for Eurodollar Term Loans plus one fourth of the Up-Front Fees paid in respect of the existing Term Loans (the “Existing Yield”), then the Applicable Margin of the existing Term Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield, and (B) any Incremental Term Loans made pursuant to this Section 2.25 shall have a maturity date no earlier than the latest existing Maturity Date or the then applicable Revolving Commitment Termination Date and shall have a Weighted Average Life to Maturity no shorter than that of the Term Loan A or any successor theretoother then-existing Incremental Term Loan;
(viii) any Incremental Revolving Commitments under this Section 2.25 shall have terms identical to those for the Revolving Commitments under this Agreement, other than with respect to the payment of Up-Front Fees;
(ix) no Lender shall have any obligation to increase its provide any Incremental Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an any Incremental Term Loan CommitmentLoan, and any decision by a Lender to increase its provide any Incremental Revolving Commitment or provide an any Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.;
(ex) An increase in the aggregate amount Borrower may designate a bank or other financial institution that is not already a Lender to provide all or any portion of the any Incremental Revolving Commitments or the establishment of an Incremental Term Loan Commitments Loan, so long as (i) such Person (an “Additional Lender”) becomes a party to this Agreement pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement lender joinder agreement or joinder other document in form and substance reasonably satisfactory to the Administrative Agent that has been executed by the Borrower and such Additional Lender, (ii) any such Person proposed by each the Borrower to become an Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to must be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) and, if such Additional Lender is to provide a Revolving Commitment, each of the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower Issuing Bank and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional LendersSwingline Lender.
(ixi) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of any Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of an Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by pursuant to a Material Adverse Effect commitment agreement, joinder agreement or other materiality, document in which case such representations form and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate substance reasonably acceptable to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, and upon the Aggregate Revolving Commitment Amount effectiveness of such commitment agreement, joinder agreement or other document pursuant to the terms thereof, the Commitments, as applicable, shall automatically be increased by the amount of the Revolving Commitments added through such commitment agreement, joinder agreement or other document and Schedule II 1.1(a) shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Commitments;
(xii) with respect to any Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (xi) within five Business Days, in the case of if any Base Rate Revolving Loans then outstanding, and at the end of the then current month with respect thereto, in the case of are outstanding upon giving effect to any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstandingIncremental Revolving Commitments, the Borrower shall shall, if applicable, prepay one or more existing Revolving Loans (such Loans in their entirety and, prepayment to the extent the Borrower elects to do so and be subject to the conditions specified Section 2.20) in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments an amount necessary such that after giving effect to such increaseIncremental Revolving Commitments, until such time as all each Lender will hold its Pro Rata Share of outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (yii) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.;
(hxiii) The Additional Lenders the Borrower shall pay any applicable upfront or existing Lenders providing an arrangement fees in connection with such Incremental Revolving Commitments or Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, Loan;
(xiv) subject to the extent limitations set forth in an amendment to this Agreement as mutually agreed by the BorrowerSection 2.25(a)(vii), the Administrative Agent amortization, the pricing and the Additional Lenders or such other Lenders, in each case who are providing use of proceeds applicable to any such Incremental Term Loan Commitmentshall in each case be set forth in the definitive documentation with respect to such Incremental Term Loan; and
(xv) all other terms and conditions with respect to any such Incremental Revolving Commitments shall be reasonably satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender.
(b) Upon the effectiveness of any such Incremental Revolving Commitment or any Incremental Term Loan, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments and/or the Incremental Term Loans, as applicable, and Schedule 1.1(a) shall automatically be deemed amended accordingly.
(c) Notwithstanding anything to the contrary in this Section 2.25, if the proceeds of any Incremental Term Loan are being used to finance a Permitted Acquisition made pursuant to an acquisition agreement, binding on the Borrower or any of its Subsidiaries, entered into in advance of the consummation thereof that does not provide for a “financing out” (an “Acquisition Agreement”), and the Borrower has obtained on or prior to the closing thereof binding commitments of Lenders and/or Additional Lenders to fund such Incremental Term Loan, then the conditions to the funding and incurrence of any such Incremental Term Loan may, at the option of the Borrower, be limited as follows: (A) the condition set forth in Section 3.2(b) shall apply only with respect to Specified Representations, (B) all representations and warranties of each Loan Party (excluding for the avoidance of doubt any target entities or subsidiaries thereof to be acquired in connection with any Permitted Acquisition) set forth in the Loan Documents
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement, Revolving Credit and Term Loan Agreement (Aaron's Inc)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, the Borrower may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, to an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 150,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan . Each Lender shall have the right for a period of 5 Business Days 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.242.21, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.21 shall become effective upon the receipt by the Administrative Agent of a an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, together with Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentCommitments, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement supplement or joinder and Schedule II I shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.20 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Kayne Anderson Energy Development Co), Senior Secured Revolving Credit Agreement (Kayne Anderson Energy Development Co)
Increase of Commitments; Additional Lenders. (a) The Subject to the terms and conditions of this Section 2.24, and so long as no Event of Default has occurred and is continuing, the Borrower may, upon at least 10 days’ by written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice from time to each Revolving Loan Lender)time, propose to (i) request an increase either in the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed $125,000,000 in the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) aggregate (the amount of any such increase or incremental term loan commitment increase, the “Additional Commitment Amount”). Such notice shall set forth (i) the amount of the Additional Commitment Amount being requested (which shall be in minimum increments of $10,000,000), 1,000,000 and a minimum amount of $25,000,000) and (ii) the “date on which the Additional Commitment Amount”Amount is requested to become effective (which shall not be less than 15 Business Days (or such shorter period as the Administrative Agent may agree) nor more than 60 days after the date of such notice).
(b) In the case For a period of a request to increase the Aggregate Revolving Commitmentsten Business Days following receipt of such notice, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(c) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Revolving Loan Lender; provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Stanley, Inc.), Revolving Credit and Term Loan Agreement (Stanley, Inc.)
Increase of Commitments; Additional Lenders. (a) The Borrower mayshall have the right from time to time, upon at least 10 daysfive (5) Business Days’ prior written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice Agent, to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Facility”) or (ii) establish one or more incremental additional term loan commitments loans (any each such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term LoanFacility”), and together with each Incremental Revolving Facility, an “Incremental Facility”) by an aggregate amount not to exceed the sum Maximum Incremental Facilities Amount; provided that:
(a) no Default or Event of Default shall have occurred and be continuing on the date on which such Incremental Facility is to become effective;
(b) such Incremental Facility shall be in a minimum amount of $20,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amounts as the Administrative Agent may agree in its discretion);
(c) such Incremental Revolving Facility or Incremental Term Facility shall be effective only upon receipt by the Administrative Agent of (xi) additional Revolving Commitments (each such commitment, an “Incremental Revolving Commitment”) in a corresponding amount of such requested Incremental Revolving Facility or Incremental Term Loan Commitments, in each case, in a corresponding amount of such requested Incremental Term Facility from either existing Lenders and/or one or more other institutions that qualify as assignees under Section 11.4 and which are approved by the greater of Administrative Agent (1such approval not to be unreasonably withheld or delayed) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurredeach such institution, an “Additional Lender”) and (yii) if either of such increase to the Aggregate documentation from each existing Lender or Additional Lender providing an Incremental Revolving Commitments Commitment or such Incremental Term Loan is incurred Commitment evidencing its agreement to provide an Incremental Revolving Commitment and/or Incremental Term Loan Commitment and its acceptance of the obligations under this Agreement in connection with a Permitted Acquisition form and substance reasonably acceptable to the Administrative Agent;
(d) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties, if required to be provided by the Lenders providing such Incremental Facility) it may reasonably request relating to the corporate or other Investments permitted by this Agreementnecessary authority for such Incremental Facility and the validity of such Incremental Facility, and any amounts other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(which e) the Administrative Agent shall have received a Pro Forma Compliance Certificate demonstrating compliance with the financial covenants in Article VI hereof after giving effect to such Incremental Facility (without “netting” the cash proceeds of the applicable Incremental Facility against Consolidated Total Debt and assuming, for purposes of claritysuch demonstration, do not include that all Incremental Revolving Commitments are fully drawn) on a Pro Forma Basis in form and substance reasonably satisfactory to the Administrative Agent (it being understood and agreed that in the case of any amounts Incremental Facility incurred in reliance upon on clause (xb) and of the definition of Maximum Incremental Facilities Amount, such Pro Forma Compliance Certificate shall not be included in Indebtedness for purposes of calculating also demonstrate compliance with the Consolidated Total Net Leverage Ratio for purpose of this test in such clause (y)) so long as the pro forma Leverage Ratio (determined (1b) after giving effect to such acquisition and assuming that such acquisition was consummated on Incremental Facility (without “netting” the first day cash proceeds of the most recently ended period applicable Incremental Facility against Consolidated Total Debt and assuming, for purposes of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisitionsuch demonstration, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate all Incremental Revolving Commitments are fully drawn) on a Pro Forma Basis in form and Incremental Term Loan Commitments may, substance reasonably satisfactory to the Administrative Agent);
(f) if any Revolving Loans are outstanding at the election time of the Borrower, be incurred under clause (y) incurrence of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an electionIncremental Revolving Facility, the Borrower will shall, if applicable, prepay one or more existing Revolving Loans (such prepayment to be deemed subject to have elected clause (y)Section 2.19) (the in an amount of any necessary such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request that after giving effect to increase the Aggregate such Incremental Revolving CommitmentsFacility, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to will hold its Pro Rata Share of outstanding Revolving Loans;
(g) any Incremental Revolving Facility shall have terms identical to those for the Additional Commitment Amount. No Revolving Loans under this Agreement, except for fees payable to the Lenders providing commitments for such increase Incremental Revolving Facility;
(h) amortization, mandatory prepayments, pricing and use of proceeds applicable to any Incremental Term Facility shall be as set forth in the Aggregate definitive documentation therefor; provided that (i) any such Incremental Term Facility shall have a final maturity date that is coterminous with or later than the Revolving Commitments Commitment Termination Date and the Maturity Date of each then outstanding Term Loan and (ii) the weighted average life to maturity of such Incremental Term Facility shall increase not be less than the weighted average life to maturity of any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.other then-existing Incremental Term Facility;
(ci) In all conditions precedent to the case making of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender and/or the issuance of a Letter of Credit set forth in Section 3.2 shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which have been satisfied at the time agrees to, in the case of incurrence of any Incremental Facility (even if there is no Borrowing thereunder on such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”date), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.;
(dj) No no Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or to provide an any portion of any Incremental Term Loan CommitmentFacility, and any decision by a Lender to increase its Revolving Commitment or provide an any portion of any Incremental Term Loan Commitment Facility shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iiik) provides that the only representations and warranties the making of which no Lead Arranger nor any Lender shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or have any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of responsibility for arranging any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in Facility without their entirety and, to the extent the Borrower elects to do so prior written consent and subject to the conditions specified in Article 3such conditions, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lendersincluding fee arrangements, as applicable, and the Additional Lenders shall make and receive payments among themselves, they may provide in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitmentsconnection therewith.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Credit Agreement (Biotelemetry, Inc.), Credit Agreement (Biotelemetry, Inc.)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, to an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 350,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan . Each Lender shall have the right for a period of 5 Business Days 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.242.21, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.21 shall become effective upon the receipt by the Administrative Agent of a an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving together with Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentCommitments, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.21 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Tc Pipelines Lp), Revolving Credit Agreement (Northern Border Pipeline Co)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) additional $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 100,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan . Each Lender shall have the right for a period of 5 Business Days 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC its Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.242.23, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.23 shall become effective upon the receipt by the Administrative Agent of a an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving together with Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentCommitments, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Revolving Commitments added through such agreement supplement or joinder and Schedule II III shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.23 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Tc Pipelines Lp), Revolving Credit and Term Loan Agreement (Tc Pipelines Lp)
Increase of Commitments; Additional Lenders. (a) The Borrower mayshall have the right, upon at least 10 daysfive (5) Business Days’ written notice (or such shorter period as may be permitted by to the Administrative Agent Agent, to add one or more Eligible Banks as new Lenders hereunder, or to increase the Commitment of any existing Lender with such existing Lender’s consent, pursuant to the terms hereof (any such addition of a new Lender or increase in its sole discretionthe Commitment of an existing Lender upon the request of the Borrower pursuant to this Section 2.03(d) being referred to as a “Lender Addition”); provided that (i) each such proposed Lender, in the case of an Eligible Bank not already a Lender hereunder, is acceptable to the Administrative Agent (who the consent of the Administrative Agent not to be unreasonably withheld); (ii) the amount of all increases to the Commitments made pursuant to this Section 2.03(d) on any Business Day shall promptly provide be equal to or greater than $25,000,000 in the aggregate; and (iii) the amount of all increases to the Commitments made pursuant to this Section 2.03(d) during the term of this Agreement shall not exceed $250,000,000 in the aggregate. Each notice of a copy proposed Lender Addition (a “Notice of such notice to each Revolving Loan Lender)Lender Addition”) shall be by telecopy, propose to confirmed immediately in writing, in substantially the form of Exhibit K hereto, specifying therein (i) increase either the Aggregate Revolving Commitments or name and address of the proposed Added Lender, (ii) establish one or more incremental term loan commitments the date on which the Borrower wishes such Lender Addition to become effective, and (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (xiii) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as amount of the date incurred) and (y) if either of Commitment such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) Added Lender would have hereunder after giving effect to such acquisition and assuming that such acquisition was consummated on Lender Addition. If the conditions set forth in the proviso contained in the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) sentence of this Section 2.24(a2.03(d) prior have been satisfied, the Administrative Agent shall forward to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available such Added Lender and the Borrower does not make an election, for execution by such Added Lender and the Borrower will be deemed to have elected clause (y)) (an Assumption and Acceptance. The Added Bank shall, upon such execution, return the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower executed Assumption and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable Acceptance to the Administrative Agent, which for the Administrative Agent’s acceptance will not be unreasonably withheldthereof. Upon such execution, conditioned or delayed. The sum of delivery and acceptance, from and after the increases effective date specified in each Assumption and Acceptance, the Revolving Commitments of Added Lender shall, in addition to the existing Lenders rights and obligations hereunder held by it immediately prior to such effective date (if any), have the rights and obligations hereunder that have been assumed by it pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement such Assumption and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, Acceptance and, in the case of an Eligible Bank not previously a Lender hereunder, shall become a Lender hereunder. By executing and delivering an Assumption and Acceptance, each Added Lender confirms to and agrees with each party hereto as follows: (i) neither the incurrence Administrative Agent nor any Lender makes any representation or warranty, nor assumes any responsibility with respect to, any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; and (ii) neither the Administrative Agent nor any Lender makes any representation or warranty, nor assumes any responsibility with respect to, the financial condition of the Incremental Term Loan Commitments, an amendment to Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement as mutually agreed or any other instrument or document furnished pursuant hereto. Upon its receipt of an Assumption and Acceptance executed by an Added Lender and the Borrower, the Administrative Agent shall, if such Assumption and Acceptance has been completed and is in substantially the Additional Lenders or such other Lendersform of Exhibit L hereto, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms accept such Assumption and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans Acceptance, and (ii) give prompt notice thereof to the extent such differences are reasonably acceptable Borrower. If requested by an Added Lender, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 a new Promissory Note or Promissory Notes to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as order of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Added Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with Section 3.01(c). Such new Promissory Note or Promissory Notes shall be dated the respective Commitments effective date of such Class of such Lenders (after giving effect to such Additional Commitment Amount), Assumption and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving CommitmentsAcceptance.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Credit Agreement (CMS Energy Corp), Credit Agreement (Consumers Energy Co)
Increase of Commitments; Additional Lenders. (a) The Borrower may, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so So long as no Event of Default has occurred and is continuing, from time to time after the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition Closing Date and assuming provided that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party the Borrower set forth in the Loan Credit Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since September 30, 2023, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect and (b) on Borrower may, upon at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a copy of such datenotice to each Lender), except for representations and warranties that expressly relate propose to increase the Aggregate Commitments up to an earlier dateaggregate amount not to exceed $250,000,000 (the amount of any such increase, the “Additional Commitment Amount”). All Additional Commitment Amounts shall have the same terms and conditions applicable to the Commitments established on the Closing Date including without limitation, as to yield, maturity and amortization. The Lenders shall have the right, for a period of 20 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase their Commitments by a principal amount equal to the Additional Commitment Amount, subject to allocations agreed by the Borrower and the Administrative Agent. No Lender (or any successor thereto) shall have any obligation to increase its Commitment or its other obligations under this Agreement and the other Credit Documents, and any decision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(b) If the Lenders do not commit to increase the Commitments by the entire Additional Commitment Amount pursuant to subsection (a) of this Section 2.21, the Borrower may designate another bank or other financial institution (an “Additional Lender”) to become a party to this Agreement; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the Additional Commitment Amount.
(c) An increase in the Aggregate Commitment Amount pursuant to this Section 2.21 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each existing Lender whose Commitment is to be true and correct in all material respects (or in all respectsincreased, as applicable) as setting forth the new Commitments of such earlier date; provided thatLenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, solely and such evidence of appropriate corporate authorization on the part of the Borrower with respect to the establishment of Incremental Term Loan Commitments entered into increase in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) such opinions of counsel for the representations and warranties made by or Borrower with respect to the applicable target increase in the Limited Condition Acquisition Agreement that are material to Commitments as the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties)Administrative Agent may reasonably request.
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added or increased through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition and increase of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments Aggregate Commitment Amount pursuant to this Section 2.24 2.21 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency SOFR Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to . Prepayments made under this subclause (x), (ASection 2.21(e) the prepayment to, and borrowing from, any existing Lender shall not be effected by book entry subject to the extent that any portion notice requirements of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving CommitmentsSection 2.9.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Atmos Energy Corp), Revolving Credit Agreement (Atmos Energy Corp)
Increase of Commitments; Additional Lenders. (a) The Borrower mayProvided there exists no Default or Event of Default, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000promptly notify the Lenders), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may befrom time to time, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is request an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate Total Commitment by an amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitmentnot exceeding $20,000,000; provided that (i) the terms and conditions applicable to Incremental Term Loans may any such request for an increase shall be materially different from those in a minimum amount of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent $5,000,000 and (ii) any increase will permanently reduce the interest ratesamount available under this provision. At the time of sending such notice, maturitythe Borrower (in consultation with the Agent) shall specify the time period within which each Lender or any potential Lenders are requested to respond (which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to the Lenders and potential Lenders). Each Lender shall notify the Agent within such time period whether or not it agrees to increase its Commitment and, mandatory prepayment provisions and amortization schedule applicable to if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such Incremental Term Loans requested increase. Any Lender not responding within such time period shall be determined by deemed to have declined to increase its Commitment. Any Lender increasing its Commitment is referred to as an "Increasing Lender". The Agent shall notify the Borrower and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of the Agent and the other Lenders, the Borrower or Agent (with the approval of Borrower) may also invite additional financial institutions (each an "Additional Lender") to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Agent and its counsel.
(b) If the Total Commitment is increased in accordance with this Section, the Agent and the Borrower shall determine the effective date (the "Increase Effective Date") and the final allocation of such increase. The Agent shall promptly notify the Borrower and the Lenders holding of the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors final allocation of such increase and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional LendersIncrease Effective Date.
(ic) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect As a condition precedent to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstandingincrease, the Borrower shall prepay such Loans in their entirety and, deliver to the extent Agent a certificate dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by an Authorized Officer of Borrower elects (i) certifying and attaching the resolutions adopted by Borrower approving or consenting to do so such increase and subject to the conditions specified in Article 3borrowing from a particular Lender, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments and (ii) certifying that, before and after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment torepresentations and warranties contained in Article 4 and the other Loan Documents are true and correct on and as of the Increase Effective Date, and borrowing from, any existing Lender shall be effected by book entry except to the extent that any portion such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of the amount prepaid to such Lender will be subsequently borrowed from such Lender earlier date, and (B) no Default nor Event of Default exists. The Borrower shall prepay any Loans outstanding on the existing Revolving Loan Lenders, as applicable, Increase Effective Date (and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable pay any prepayment fees required) to the Administrative Agent, so that, after giving effect thereto, extent necessary to keep the outstanding Loans of such Lenders are held ratably by ratable with any revised Pro Rata Shares arising from any nonratable increase in the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitmentsunder this Section.
(hd) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment This Section shall be included supersede any provisions in any determination of the Required Lenders Sections 8.3(b) and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, 8.10 to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitmentcontrary.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Owens Realty Mortgage, Inc.)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to request incremental term loans hereunder (each such increase, upon at least 10 days’ written notice an “Incremental Commitment”) so long as the following conditions are satisfied:
(or i) the aggregate principal amount of all such shorter period Incremental Commitments made pursuant to this Section shall not exceed $225,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2021, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) on any incremental term loans made pursuant to this Section (the “Incremental Term Loans”) shall (1) not mature earlier than the existing Term Loans and Incremental Term Loans and (2) have no amortization or otherwise be permitted to be prepaid prior to the latest existing Maturity Date of any Term Loans or any tranche of Incremental Term Loans;
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such dateIncremental Term Loans had been made as of the first day of the relevant period for testing compliance;
(vi) All Incremental Term Loans (i) shall rank pari passu in right of payment with the Term Loans and any existing Incremental Term Loans, except for representations (ii) shall be equally and warranties ratably secured with the Term Loans and existing Incremental Term Loans, and (iii) shall be treated substantially the same (and in any event, not more favorably than) the Term Loans and any existing Incremental Term Loans; and
(vii) all other terms and conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrower shall provide at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that expressly relate agree to an earlier dateprovide Incremental Term Loans, which fees may be variable based upon the amount by which any such Lender is willing to provide Incremental Term Loans. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to provide Incremental Term Loans, and any decision by a Lender to provide Incremental Term Loans shall be true and correct made in all material respects (or in all respectsits sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for the Incremental Term Loans, as applicable) as of such earlier date; provided that, solely pursuant to this Section. No Lender which declines to provide Incremental Term Loans may be replaced with respect to the establishment of its existing Term Loans and/or its Incremental Term Loan Commitments entered into Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in connection writing about whether it will provide Incremental Term Loans within 15 days after receipt of such notice, such Lender shall be deemed to have declined to provide Incremental Term Loans, as applicable. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the financing “Additional Lenders”), which Additional Lenders may assume all or a portion of a Limited Condition Acquisition, such Incremental Commitment. The Borrower and the Lenders providing Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Term Loan Commitments may agree Loans among the Increasing Lenders and the Additional Lenders. The sum of all Incremental Term Loans of the Increasing Lenders plus the Incremental Term Loans of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to paragraphs (a) and (b) of this Section, any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth any new Incremental Term Loans, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a “funds certain provision” that:party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) does not impose as a condition to funding thereof that no Default or Event such evidence of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing appropriate corporate authorization on the Limited Condition Acquisition Test Date part of the Borrower with respect to such Limited Condition Acquisition Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(yiii) no Default a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in paragraph (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or Event of Default under any Increasing Lender, executed promissory notes evidencing such Incremental Term Loans, issued by the Borrower in accordance with Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated2.10; and
(iiiv) provides any other certificates or documents that the only representations Administrative Agent shall reasonably request, in form and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect substance reasonably satisfactory to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Administrative Agent. Upon the acceptance effectiveness of any such agreement by the Administrative AgentIncremental Commitment, the Aggregate Revolving Commitment Amount shall automatically Commitments and Pro Rata Share of each Lender will be increased by adjusted to give effect to the amount of the Revolving Commitments added through such agreement Incremental Term Loans, as applicable, and Schedule II shall automatically be deemed amended to reflect the accordingly.
(d) If any Incremental Term Loans are to have terms that are different from the existing Term Loans or the Term Loan Commitments or Revolving Commitments of all Lenders after giving effect Commitments, as applicable, outstanding immediately prior to the addition of such incurrence (any such Incremental Term Loans, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among the Borrower, the Lenders providing such Incremental Term Loans and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Non-Conforming Credit Extensions. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan Commitments or Revolving Commitments.
(g) Upon Documents to the extent necessary to give effect to any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not and mechanical changes necessary or advisable in connection therewith (including amendments to ensure pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case allocations of any SOFR Loans and Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate between Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect incurred pursuant to this subclause (xSection), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Term Loan Agreement (Sila Realty Trust, Inc.), Term Loan Agreement (Sila Realty Trust, Inc.)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments and/or request incremental term loans hereunder (each such increase, upon at least 10 days’ written notice an “Incremental Commitment”) so long as the following conditions are satisfied:
(or i) the aggregate principal amount of all such shorter period Incremental Commitments made pursuant to this Section shall not exceed $500,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2020, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) on such date, except for representations (x) any incremental term loans made pursuant to this Section (the “Incremental Term Loans”) shall (1) not mature earlier than the Revolving Commitment Termination Date or any then existing Incremental Term Loans and warranties that expressly relate (2) have no amortization or otherwise be permitted to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect prepaid prior to the establishment Revolving Commitment Termination Date or the latest existing Maturity Date of any tranche of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition AcquisitionLoans, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have a termination date no Default or Event earlier than the Revolving Commitment Termination Date;
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of Default under Section 8.1(a)the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (b), and fully funded) as of the first day of the relevant period for testing compliance;
(h), vi) All Incremental Term Loans (i) or shall rank pari passu in right of payment with the Revolving Loans and any existing Incremental Term Loans, (jii) shall have occurred be equally and ratably secured with the Revolving Loans and existing Incremental Term Loans, and (iii) shall be continuing at treated substantially the time such Limited Condition Acquisition is consummatedsame (and in any event no more favorably than) the Revolving Loans; and
(iiivii) provides that the only representations all other terms and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or conditions with respect to the applicable target in the Limited Condition Acquisition Agreement that are material any such Incremental Commitments shall be reasonably satisfactory to the interests Administrative Agent.
(b) The Borrower shall provide at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a copy of the Lenderssuch notice to each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, but only is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or provide Incremental Term Loans, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or its Incremental Term Loans, as applicable. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the extent Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that the Borrower it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount and/or provide Incremental Term Loans, and any decision by a Lender to increase its Revolving Commitment and/or provide Incremental Term Loans shall automatically be increased by made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments added through and/or the Incremental Term Loans, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or provide Incremental Term Loans may be replaced with respect to its existing Revolving Commitment and/or its Incremental Term Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment and/or its Incremental Term Loans within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment and/or provide Incremental Term Loans, as applicable. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments and the Incremental Term Loans of the Increasing Lenders plus the Revolving Commitments and the Incremental Term Loans of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to paragraphs (a) and (b) of this Section, any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Commitments and/or new Incremental Term Loans, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in paragraph (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments and/or the Incremental Term Loans, as applicable, and Schedule II shall automatically be deemed amended to reflect the accordingly.
(d) If any Incremental Term Loan Commitments Loans or any Incremental Revolving Commitments of all Lenders after giving effect are to have terms that are different from the addition of existing Incremental Term Loans or the Revolving Commitments, as applicable, outstanding immediately prior to such incurrence (any such Incremental Term Loan Commitments Loans or Incremental Revolving Commitments.
(g) Upon any increase , the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among the aggregate amount Borrower, the Lenders providing such Incremental Term Loans and/or Incremental Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Non-Conforming Credit Extensions. If the Borrower incurs Incremental Revolving Commitments under this Section, regardless of whether such Incremental Revolving Commitments are Non-Conforming Credit Extensions, the Borrower shall, after such time, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section 2.24 that is not and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case allocations of any SOFR Loans and Base Rate Loans then outstanding, between Loans incurred pursuant to this Section and at Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the end Non-Conforming Credit Extensions consisting of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, Incremental Revolving Commitments and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion Commitments outstanding immediately prior to their respective Revolving Commitments after giving effect to any such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increaseincurrence); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Sila Realty Trust, Inc.), Revolving Credit Agreement (Sila Realty Trust, Inc.)
Increase of Commitments; Additional Lenders. (a) The Borrower maySo long as no Event of Default has occurred and is continuing, from time to time after the Funding Date and upon at least 10 20 days’ written notice to the Administrative Agent (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lendermay reasonably agree), propose the Borrowers may elect to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) Credit Commitment Amount up to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate a total amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred 1,100,000,000 at any time in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”)effect.
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower The Borrowers may designate another bank one or more banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) which at the time agrees agree to, (x) in the case of any such Person that is an existing Lender, increase the amount of its Revolving Commitment or provide an Incremental Term Loan Commitment Commitment, and (y) in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution that is not an existing Lender must be reasonably acceptable to the Administrative Agent, the Swingline Lender and the Issuing Banks (in each case, which acceptance will not be unreasonably withheld, conditioned delayed or delayed. The sum conditioned) if the consent of the increases in Administrative Agent, the Revolving Commitments of Swingline Lender and the existing Lenders pursuant Issuing Banks would be required to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request effect an assignment to increase the Aggregate Revolving Commitments.
(d) such bank or financial institution under Section 11.10(b). No Lender (or any successor thereto) shall have any obligation whatsoever to agree to increase the amount of its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.14 shall become effective upon the receipt by the Administrative Agent of (i) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Commitment Increase Agreement signed by the Borrower and Borrowers, by each Additional Lender and by each other Revolving Loan existing Lender the amount of whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and together with such evidence of appropriate corporate (or equivalent) authorization on the part of the Borrower and the Guarantors Borrowers with respect to the increase in the Revolving Commitments or the incurrence amount of the Incremental Term Loan Commitments Commitments, (ii) duly executed amendments of each Collateral Rig Mortgage then in effect to reflect the Commitment amount immediately after giving effect to the Commitment Increase Agreement and (iii) such opinions of counsel for the Borrower and the Guarantors Borrowers with respect to the increase in the Revolving Commitments or the incurrence amount of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in .
(d) Upon the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed receipt by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything items described in Section 10.2 to the contrary2.14(c), the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Credit Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through pursuant to such agreement Commitment Increase Agreement and Schedule II Annex I shall be automatically be deemed amended updated to reflect the Incremental Term Loan Commitments or Revolving Commitments Commitment amounts of all Lenders each Lender immediately after giving effect to the addition of such Incremental Term Loan Commitments or Revolving CommitmentsCommitment Increase Agreement.
(ge) Upon On the effective date of any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.14 that is not pro rata among all Revolving Loan Lenders, (xi) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstandingBorrowers, the Borrower Administrative Agent and the Lenders shall prepay such Loans in their entirety and, make adjustments to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the outstanding principal amount of Revolving Loans from (but not any interest accrued thereon or any accrued fees prior to such date), including the repayment of Revolving Loan Loans plus all applicable accrued interest, fees and expenses as shall be necessary to provide for Revolving Loans by the Lenders in proportion to their respective Revolving Commitments Percentages immediately after giving effect to such increase, until such time as all together with any breakage fees and funding losses that are required to be paid pursuant to Section 2.11, and each Lender shall be deemed to have automatically made an assignment of its outstanding Revolving Loans, and assumed outstanding Revolving Loans are held by of other Lenders as may be necessary to effect the Revolving Loan Lenders foregoing (notwithstanding the requirements set forth in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment AmountSection 11.10), and (yii) effective upon such increase, the amount of the unfunded participations held by each Revolving Loan Lender in each Letter of Credit and Swingline Loan then outstanding shall be adjusted automatically such that, immediately after giving effect to such adjustments, the Lenders shall hold unfunded participations in each such Letter of Credit and Swingline Loan in the proportion its respective Percentage immediately after giving effect to their respective Revolving Commitmentssuch increase.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Paragon Offshore Ltd.), Senior Secured Revolving Credit Agreement (Noble Corp PLC)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower may, upon at least 10 days’ written notice and one or more Increasing Lenders or Additional Lenders (or such shorter period each as defined below) may be permitted by enter into an agreement to increase the Administrative Agent in its sole discretion) to aggregate principal amount of the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) and/or establish one or more incremental term loan commitments new tranches of Incremental Term Loan Commitments hereunder (any each such incremental term loan commitmentincrease or additional tranche, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio following conditions are satisfied:
(determined (1i) after giving effect the aggregate principal amount of all such Incremental Commitments made pursuant to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with this Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) exceed $250,000,000 (the principal amount of any each such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)Incremental Commitment, the “Additional Incremental Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an each such Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate a minimum amount of the Revolving Commitments $10,000,000 or the establishment increments of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder $5,000,000 in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and excess thereof;
(ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.[Reserved];
(iiii) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofCommitment, (x) no Default or Event of Default shall have occurred exist; provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Commitment and the Administrative Agent may agree that such condition shall be continuing and limited to an absence of an Event of Default as of the date of the execution of the definitive documentation with respect to such Acquisition, (y) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on as of the date of the establishment of such dateIncremental Commitment (or, except for representations and warranties that expressly relate if such representation or warranty relates to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date); provided that, solely with respect to that in the establishment case of any Incremental Term Loan Commitments entered into in connection with Commitment obtained for the purposes of financing of a Limited Condition Acquisitionan Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Term Loan Commitments Commitment may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof such Incremental Commitment (and the Incremental Term Loans or Revolving Loans provided thereunder) shall be (xI) certain “specified representations” agreed to by the Lenders providing such Commitments Specified Representations and (yII) the representations and warranties made by or with respect to on behalf of the applicable target in the Limited Condition purchase, acquisition or similar agreement governing such Acquisition Agreement that or other Investment as are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted the Borrower’s applicable Affiliates or Subsidiaries) has the right (determined without regard to any notice requirement) not to consummate or the right to terminate (or cause the termination of) the Borrower’s (or such Restricted Subsidiary’sAffiliates’ or Subsidiaries’) obligations under such Limited Condition Acquisition Agreement purchase, acquisition or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement other agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement purchase, acquisition or other agreement (or the failure of such representations or warranties to be true and correct accurate or to satisfy the closing conditions in such Limited Condition Acquisition Agreement purchase, acquisition or other agreement applicable to such representations or warranties).
) (f) Upon the acceptance of any such agreement by the Administrative Agentrepresentations and warranties, the Aggregate Revolving Commitment Amount shall automatically be increased by “Specified Target Representations”) and (z) to the amount extent there is a condition that no Material Adverse Effect exists as of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect date of the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition initial funding of such Incremental Term Loan Commitments Commitment, such condition shall be limited to the target of such Acquisition or Revolving Commitments.Investment, in such manner and to the extent required to be satisfied under the definitive documentation with respect to such Acquisition;
(giv) Upon (x) any increase in the aggregate amount of the Revolving Commitments incremental Term Loans made pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders(the “Incremental Term Loans” and, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month commitments with respect thereto, the “Incremental Term Loan Commitments”) shall have a maturity date no earlier than the Revolving Commitment Termination Date in effect at the case time such Incremental Term Loans are incurred and shall have a Weighted Average Life to Maturity no shorter than that of any Index Rate previously established Incremental Term Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after (without giving effect to previous reductions in and previously made amortization payments on such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amountpreviously established Incremental Term Loans), and (y) effective upon any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have identical terms (including pricing and termination date; provided that upfront fees for any Incremental Revolving Commitments will be permitted and shall be determined by the Borrower and the Lenders providing such increaseIncremental Revolving Commitments) to the Revolving Commitments and be treated as the same Class as the Revolving Commitments and the Borrower shall, after the establishment of any Incremental Revolving Commitments pursuant to this Section, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such increase (provided that such repayment and incurrence may, with the Administrative Agent’s consent, be effectuated through assignments among Lenders with Revolving Commitments, which shall not require an Assignment and Acceptance and may be effectuated by the Administrative Agent through changes in the Register and fundings from such Lenders providing Incremental Commitments); provided, further, that Interest Periods applicable to Incremental Term Loans or Revolving Loans advanced pursuant to Incremental Revolving Commitments may, at the election of the Administrative Agent and the Borrower, be made with Interest Period(s) identical to the then remaining Interest Period(s) applicable to existing Term Loans of the relevant Class or existing Revolving Loans of the applicable Class (and allocated to such Interest Period(s) on a proportional basis); and
(v) the Borrower and its Subsidiaries shall be in compliance with each of the Financial Covenants, calculated (x) in the case of Incremental Term Loan Commitments, on the date the Incremental Term Loans provided thereunder are funded or (x) in the case of Incremental Revolving Commitments, on the date such Incremental Revolving Commitments become effective, in each case, as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of such date, as applicable (including giving effect to any Acquisition consummated after the end of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.1(a) or (b) and on or prior to such date which is funded with such Incremental Term Loans or Incremental Revolving Commitments); provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Commitment may agree that such pro forma compliance shall be tested as of the date of the execution of the definitive documentation with respect to such Acquisition.
(b) The Borrower shall provide at least ten (10) Business Days’ (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or provide Incremental Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or the principal amount of the participations held Incremental Term Loan Commitment such Lender is willing to provide, as applicable. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment, and any decision by each a Lender to increase its Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing Commitment and/or provide an Incremental Term Loan Commitment shall be included made in its sole discretion independently from any determination other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Required Lenders and such Lenders will not constitute Revolving Commitments and/or the establishment of a separate voting class for any purposes under this Agreement. Any tranche of Incremental Term Loan Commitments, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment may be replaced with respect to its existing Revolving Commitment and/or its Incremental Term Loans, as applicable, as a result thereof without such Lender’s consent. The Borrower may accept some or all of the offered amounts from existing Lenders or designate new lenders that are acceptable to the Administrative Agent (any such consent (x) to be required only to the extent required under Section 10.4(b) for an assignment of Loans shall or Commitments of such Type to such new lender and (y) not to be entitled to all the benefits afforded by, this Agreement unreasonably withheld) and the other Loan DocumentsBorrower as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), and shall, without limiting which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower shall have discretion to adjust the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders (as it may be subordinated elect). The sum of the increase in right the principal amount of payment, the Liens securing such Revolving Commitments and the aggregate principal amount of the Incremental Term Loans may Loan Commitments of the Increasing Lenders plus the principal amount of the Revolving Commitments and the aggregate principal amount of the Term Loan Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any increase requested by the Borrower shall be subordinated or such effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder (each, an “Incremental Term Loans may be unsecuredCommitment Joinder”), in each case, form and substance reasonably acceptable to the extent set forth in an amendment to this Agreement as mutually agreed Administrative Agent, executed by the Administrative Agent, by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Revolving Commitments and/or Incremental Term Loan Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent and may reasonably request;
(iii) a certificate of the Additional Lenders or such other LendersBorrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each case who are providing of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request in connection with and at the time of any such proposed increase. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments and/or the Incremental Term Loans, as applicable, and Schedule I shall automatically be deemed amended accordingly.
(d) If any Incremental Term Loan Commitment.Commitments are to be established pursuant to this Section, other than as set forth herein, all terms with respect thereto shall be as set forth in the applicable Incremental Commitment Joinder, the execution and delivery of which agreement shall be a condition to the effectiveness of the establishment of the Incremental Term Loan Commitments. Notwithstanding anything to the contrary in
Appears in 1 contract
Sources: Credit and Guaranty Agreement (CareTrust REIT, Inc.)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (Agent, who shall promptly provide a copy of such notice to each Revolving Loan Lender)notify the Lenders, propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, up to an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 450,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “"Additional Commitment Amount”").
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan . Each Lender shall have the right for a period of 5 Business Days 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect event that the aggregate amount to which the Lenders are willing to increase its Revolving the Commitments is less than the Additional Commitment pursuant to subsection (a) of this Section 2.24, Amount based on the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of written notices delivered by the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable Lenders to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in Administrative Agent shall offer to the Revolving Lenders who have agreed to increase their Commitments of the existing Lenders pursuant opportunity to this subsection (c) plus the Revolving further increase their Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed up to an amount of equal to the Additional Commitment Amount Amount. Each such Lender shall promptly respond in writing to the case Administrative Agent of a request whether it will agree to further increase its Commitment and by what amount it will agree to further increase its Commitment. Within five (5) Business Days after receipt of all responses from such Lenders, the Aggregate Revolving Commitments.
(d) Administrative Agent shall inform the Borrower and all Lenders in writing of the amount by which each Lender will increase its Commitment. No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan CommitmentDocuments, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender. Decisions to increase a Commitment must be affirmatively communicated in writing and shall not be presumed based upon a failure to respond to Borrower's request.
(eb) An If the existing Lenders do not elect to increase the Aggregate Commitments by the Additional Commitment Amount pursuant to subsection (a) of this Section, the Borrower shall have the right, within ninety days (90) after receipt of such notice from the Administrative Agent, to obtain additional Commitments from one or more other banks or financial institutions (each, an "Additional Lender") to the extent necessary to increase the Aggregate Commitments by the Additional Commitment Amount; provided, however, that each Additional Lender must (i) be acceptable to the Administrative Agent and (ii) become a party to this Agreement pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent. The sum of the increases in the Commitments of the existing Lenders pursuant to subsection (a) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the Additional Commitment Amount.
(c) Increases in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.21 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder each agreement in form and substance reasonably satisfactory to the Administrative Agent executed signed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and together with such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II Annex I shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(gd) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.21 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstandingeffective upon such increase, the Borrower shall prepay such be deemed to have prepaid all outstanding Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving reborrowed Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be deemed adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in the proportion to their its respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, bears to the extent set forth in an amendment aggregate Commitments after giving effect to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitmentincrease.
Appears in 1 contract
Sources: Revolving Credit Agreement (Kaneb Pipe Line Partners L P)
Increase of Commitments; Additional Lenders. (a) The Borrower maySo long as no Event of Default has occurred and is continuing, from time to time after the Effective Date and upon at least 10 20 days’ written notice to the Administrative Agent (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lenderand Company may agree), propose the Company may elect to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) Credit Commitment Amount up to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate a total amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred 800,000,000 at any time in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”)effect.
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower The Company may designate another bank one or more banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) which at the time agrees agree to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution that is not an existing Lender must be acceptable to the Administrative AgentAgent and/or the Swingline Lender (in each case, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum ) if the consent of the increases in Administrative Agent or the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in Swingline Lender, as the case of a request may be, would be required to increase the Aggregate Revolving Commitments.
(d) effect an assignment under Section 10.10(b). No Lender (or any successor thereto) shall have any obligation whatsoever to agree to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.13 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Joinder Agreement signed by the Borrower and Company, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and together with such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors Company with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors Company with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Credit Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II the Commitment amounts of each Lender set forth on the signature pages hereto shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitmentsbe updated.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.13 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Daysthe Borrowers, in the case of any Base Rate Loans then outstanding, Administrative Agent and at the end Lenders shall as of the then current month with respect thereto, in the case effective date of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, increase make adjustments to the extent the Borrower elects outstanding principal amount of Revolving Loans (but not any interest accrued thereon or any accrued fees prior to do so and such date), including, subject to the conditions specified in Article 3Section 4.2, the Borrower shall reborrow the borrowing of additional Revolving Loans from hereunder and the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding repayment of Revolving Loans are held plus all applicable accrued interest, fees and expenses as shall be necessary to provide for Revolving Loans by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided , together with any breakage fees and funding losses that with respect are required to this subclause (x), (A) the prepayment tobe paid pursuant to Section 2.11, and borrowing from, any existing each Lender shall be effected by book entry deemed to the extent that any portion have made an assignment of its outstanding Revolving Loans and Commitment, and assumed outstanding Revolving Loans and Commitments of other Lenders as of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans effective date of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving increase as may be necessary to effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The To the extent that the aggregate principal amount of all Commitments is less than $175,000,000 and so long as no Event of Default has occurred and is continuing, Borrower may, from time to time after the Closing Date and in any event upon at least 10 5 days’ ' prior written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Revolving Commitments such that the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) exceed $175,000,000 (the amount of any such increase, the "Additional Revolver Amount"). No Lender (or any successor thereto) shall have any obligation to increase either its Commitments or incremental term loan commitment (which its other obligations under this Agreement and the other Loan Documents, and any decision by a Lender to increase its Commitments shall be made in minimum increments of $10,000,000), the “Additional Commitment Amount”)its sole discretion independently from any other Lender.
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the The Borrower may designate another a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment Commitments, and in the case of any other such Person (an “"Additional Lender”"), which at the time agrees to become a party to this Agreement, if not already Agreement and provide a Lendernew Commitment; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsRevolver Amount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.28 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder an agreement in form and substance reasonably satisfactory to the Administrative Agent executed signed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is Commitments are to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and together with such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Revolving Commitments added through such agreement Additional Revolver Amount and Schedule II Annex I shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving new Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.28 that is not pro rata among all Revolving Loan Lenders, (x) within five 5 Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling Loan then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving such Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in such proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in the proportion to their its respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, bears to the extent set forth in an amendment Aggregate Revolving Commitments after giving effect to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitmentincrease.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The So long as no Default or Event of Default has occurred and is continuing, from time to time after the Closing Date, either Borrower may, upon at least 10 ten days’ written notice (or such shorter period of time as may be permitted by the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate SBAC Revolving Commitments or the Aggregate SBF Revolving Commitments (ii) establish one or more incremental term loan commitments (any such incremental term loan commitmenteach, an “Incremental Term Loan Revolving Commitment”) to make an incremental term loan (any such incremental term loan, ” or an “Incremental Term LoanFacility”), by an ; provided that the aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate all Incremental Revolving Commitments or such Incremental Term Loan is incurred shall not exceed $50,000,000 in connection with a Permitted Acquisition or other Investments permitted by the aggregate over the term of this Agreement, . No Lender shall have any amounts (which for purposes of clarity, do not include obligation to extend any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”)Facility.
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the The applicable Borrower may designate another a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees toto extend such Incremental Facility (each, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lenderextend such Incremental Facility; provided, provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection .
(c) plus In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing SBAC Revolving Commitments of or SBF Revolving Commitments, as applicable (other than any initial upfront fees paid to the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate extending such Incremental Revolving Commitments.Commitment); and
(dii) No Lender (the outstanding SBAC Revolving Loans or any successor thereto) shall have any obligation to increase its SBF Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall Loans will be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt reallocated by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of applicable increase effective date among the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and applicable Lenders (including the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
Revolving Commitment) in accordance with their revised Pro Rata Shares (ii) does not impose as a condition to funding thereof that no Default or Event of Default and the applicable Lenders (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at including the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Additional Lenders providing such Commitments Incremental 60 Revolving Commitment) agree to make all payments and (y) the representations and warranties made by or with respect adjustments necessary to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or effect such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warrantiesreallocation).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Sources: Credit Agreement (Tiptree Inc.)
Increase of Commitments; Additional Lenders. (a) The So long as no Default or Event of Default has occurred and is continuing, from time to time after the Closing Date, either Borrower may, upon at least 10 ten days’ written notice (or such shorter period of time as may be permitted by the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate SBAC Revolving Commitments or the Aggregate SBF Revolving Commitments (ii) establish one or more incremental term loan commitments (any such incremental term loan commitmenteach, an “Incremental Term Loan Revolving Commitment”) to make an incremental term loan (any such incremental term loan, ” or an “Incremental Term LoanFacility”), by an ; provided that the aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate all Incremental Revolving Commitments or such Incremental Term Loan is incurred shall not exceed $50,000,000 in connection with a Permitted Acquisition or other Investments permitted by the aggregate over the term of this Agreement, . No Lender shall have any amounts (which for purposes of clarity, do not include obligation to extend any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”)Facility.
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the The applicable Borrower may designate another a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees toto extend such Incremental Facility (each, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lenderextend such Incremental Facility; provided, provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection .
(c) plus In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the existing SBAC Revolving Commitments of or SBF Revolving Commitments, as applicable (other than any initial upfront fees paid to the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate extending such Incremental Revolving Commitments.Commitment); and
(dii) No Lender (the outstanding SBAC Revolving Loans or any successor thereto) shall have any obligation to increase its SBF Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall Loans will be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt reallocated by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of applicable increase effective date among the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and applicable Lenders (including the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
Revolving Commitment) in accordance with their revised Pro Rata Shares (ii) does not impose as a condition to funding thereof that no Default or Event of Default and the applicable Lenders (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at including the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Additional Lenders providing such Commitments Incremental Revolving Commitment) agree to make all payments and (y) the representations and warranties made by or with respect adjustments necessary to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or effect such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warrantiesreallocation).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date, the Borrower may, upon at least 10 thirty (30) days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments Term Loan, increase the Multicurrency Commitments, or (ii) establish one or more incremental additional term loan commitments loans (any such incremental term loan commitmenteach, an “Incremental Term Loan CommitmentLoan”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by in an aggregate amount not to exceed $45,000,000 (the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either aggregate principal amount of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)Loans, the “Additional Commitment Amount”); provided, that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) after giving effect to such increase, the Borrower shall be in compliance with the financial covenants in Article VI
on a Pro Forma Basis and assuming full utilization of the Revolving Commitments, (iii) the aggregate principal amount of such Additional Commitment Amount shall be not less than $10,000,000 or a larger multiple of $5,000,000, (iv) with respect to any Incremental Loan, (x) the final maturity date shall be no earlier than the latest Maturity Date for any then existing Loan, (y) the weighted average life to maturity of such Incremental Loan shall not be shorter than the weighted average life to maturity of any then existing Loan and (z) the interest rate may not exceed the interest rate applicable to any then existing Loan by more than 0.50% per annum (after taking into account any interest rate floors, original issue discount and upfront fees, as applicable, equated to per annum interest in a manner determined by the Administrative Agent and consistent with generally accepted financial practice based on an assumed four-year average life to maturity (e.g., 25 basis points equals 100 basis points in original issue discount or upfront fees payable on the principal amount of debt)), it being understood that the interest rate applicable to any existing Loan may be increased to the extent necessary to satisfy such requirement, and (v) no Lender shall have any obligation to provide any Incremental Loan Commitment, and any decision by a Lender to provide any Incremental Loan Commitment shall be made in its sole discretion independently from any other Lender.
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan If any Lender shall have the right for a period of 5 Business Days following receipt of such notice, decline to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase provide any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.242.23, or any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will provide any Incremental Loan Commitment within fifteen (15) days after receipt of notice of the Borrower’s request for any Incremental Loan Commitment, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment Commitment, as applicable, and in the case of any other such Person that is not already a Lender (an “Additional Lender”), which at the time agrees to become a party to this Agreement pursuant to an Additional Commitment Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum principal amount of the increases in the Revolving Commitments Incremental Loans of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments principal amount of Incremental Loans of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(dc) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the Any establishment of any Incremental Term Loan Commitments pursuant to this Section 2.24 2.23 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent an Additional Commitment Agreement duly executed by the Borrower and by each any Lender (including any Additional Lender and by each other Revolving Lender) providing an Incremental Loan Lender whose Revolving Commitment is to be increasedCommitment, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments Commitment of such Lenders and setting forth the agreement of each Additional Lender Lender, if any, to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such together with evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors other Loan Parties with respect to the increase in the Revolving Commitments or the incurrence of the such Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors Loan Parties with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments thereto as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement a duly executed Additional Commitment Agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Revolving Incremental Loan Commitments added through such agreement Additional Commitment Agreement and Schedule II I shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Multicurrency Commitments pursuant to this Section 2.24 2.23 that is not pro rata among all Revolving Loan Multicurrency Lenders, (x) within five (5) Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate that are Multicurrency Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling that are Multicurrency Loans then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Multicurrency Loans from the Revolving Loan Multicurrency Lenders in proportion to their respective Revolving Multicurrency Commitments after giving effect to such increase, until such time as all outstanding Revolving Multicurrency Loans are held by the Revolving Loan Multicurrency Lenders in proportion to their respective Multicurrency Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Multicurrency Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Multicurrency Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Multicurrency Commitments.
(hf) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in If any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed is required to give effect to any institution of an Incremental Loan pursuant to and in accordance with this Section 2.23, then such amendment shall be effective if executed by the BorrowerLoan Parties, each lender providing an Incremental Loan Commitment and the Administrative Agent and notwithstanding anything in Section 11.2 (other than the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitmentproviso of Section 11.2(b)) to the contrary.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Initial Availability Date, the Borrower may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide Agent, elect to increase the Revolving Credit Commitment Amount up to a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate total amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred 750,000,000 at any time in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the The Borrower may designate another bank one or more banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) which at the time agrees agree to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution that is not an existing Lender must be acceptable to the Administrative Agent, the Swingline Lender and the Issuing Banks, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) Amount. No Lender (or any successor thereto) shall have any obligation whatsoever to agree to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.14 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Joinder Agreement signed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and together with such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Credit Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II the Commitment amounts of each Lender set forth on the signature pages hereto shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitmentsbe updated.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.14 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such all outstanding Loans in their entirety entirety, together with any breakage fees and funding losses that are required to be paid pursuant to Section 2.11, and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3IV, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the unfunded participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold unfunded participations in each such Letter of Credit in the proportion to their its respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, bears to the extent set forth in an amendment aggregate Commitments after giving effect to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitmentincrease.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, the Borrower may, upon at least 10 days’ by written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Senior Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, to an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 175,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
(b) In . At the case election of a request to increase the Aggregate Revolving CommitmentsBorrower, if specified in such notice, each Revolving Loan Lender shall have the right for a period of 5 15 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Senior Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Senior Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Senior Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In If the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Borrower elected to not offer each Lender shall not the right to elect to increase its Senior Revolving Commitment pursuant to subsection (a) of this Section 2.242.21, or if any Lender shall not make such election, the Borrower may accept from any Lender or Lenders, on a non-pro rata basis, an increase in its or their Senior Revolving Commitment or may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is not an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person Lender (an “Additional Lender”), which at the time agrees ) to become a party to this AgreementAgreement and make a Senior Revolving Commitment, in each case if not already a Lendersuch Lender or Additional Lender at the time agrees to; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Senior Revolving Commitments of the existing Lenders pursuant to subsection (a), if applicable, or this subsection (cb) plus the Senior Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Senior Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.21 shall become effective upon the receipt by the Administrative Agent of a an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Senior Revolving Commitment is to be increased, setting forth the new Senior Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, together with Senior Revolving Notes evidencing such increase in the Senior Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentCommitments, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Senior Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Senior Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, the Aggregate Senior Revolving Commitment Amount shall automatically be increased by the amount of the Senior Revolving Commitments added through such agreement supplement or joinder and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Senior Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Senior Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Senior Revolving Commitments pursuant to this Section 2.24 2.21 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Senior Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Senior Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Sources: Revolving Credit Agreement (NGP Capital Resources CO)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, the Borrower may, upon at least 10 days’ by written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Senior Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, to an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 110,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
(b) In . At the case election of a request to increase the Aggregate Revolving CommitmentsBorrower, if specified in such notice, each Revolving Loan Lender shall have the right for a period of 5 15 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Senior Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Senior Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Senior Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In If the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Borrower elected to not offer each Lender shall not the right to elect to increase its Senior Revolving Commitment pursuant to subsection (a) of this Section 2.242.21, or if any Lender shall not make such election, the Borrower may accept from any Lender or Lenders, on a non-pro rata basis, an increase in its or their Senior Revolving Commitment or may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is not an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person Lender (an “Additional Lender”), which at the time agrees ) to become a party to this AgreementAgreement and make a Senior Revolving Commitment, in each case if not already a Lendersuch Lender or Additional Lender at the time agrees to; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Senior Revolving Commitments of the existing Lenders pursuant to subsection (a), if applicable, and this subsection (cb) plus the Senior Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Senior Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.21 shall become effective upon the receipt by the Administrative Agent of a an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Senior Revolving Commitment is to be increased, setting forth the new Senior Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other together with Senior Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Credit Notes evidencing such increase in the Senior Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentCommitments, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Senior Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Senior Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, the Aggregate Senior Revolving Commitment Amount shall automatically be increased by the amount of the Senior Revolving Commitments added through such agreement supplement or joinder and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Senior Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Senior Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Senior Revolving Commitments pursuant to this Section 2.24 2.21 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Senior Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Senior Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Sources: Revolving Credit Agreement (NGP Capital Resources Co)
Increase of Commitments; Additional Lenders. (a) The Borrower So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, the Parent may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), who shall promptly notify the Lenders, propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, Commitment Amount up to an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 200,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan . Each Lender shall have the right for a period of 5 Business Days 15 days following receipt of such notice, to elect by written notice to the Borrower Parent and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24Section, the Borrower Parent may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.22 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder an agreement in form and substance reasonably satisfactory to the Administrative Agent executed signed by the Borrower and Borrowers, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and together with such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors Borrowers with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors Borrowers with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II Annex I shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.22 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower Borrowers shall prepay such Loans in their entirety and, to the extent the Borrower elects Borrowers elect to do so and subject to the conditions specified in Article 3III, the Borrower Borrowers shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in such proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in the proportion to their its respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, bears to the extent set forth in an amendment aggregate Revolving Commitments after giving effect to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitmentincrease.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments (“Incremental Revolving Commitments”) and/or establish term loan commitments hereunder (“Incremental Term Loan Commitments”; and together with any Incremental Revolving Commitments, upon at least 10 days’ written notice each an “Incremental Commitment”) so long as the following conditions are satisfied: (or i) the aggregate principal amount of all such shorter period Incremental Commitments made pursuant to this Section shall not exceed the sum of (I) $125,000,000 and (II) an unlimited amount so long as the Consolidated Total Net Leverage Ratio is less than 2.90:1.00 calculated on a pro forma basis after giving effect to the incurrence of such Incremental Commitments (and assuming the aggregate amount of such Incremental Commitments, including all Incremental Revolving Commitments, have been fully funded) and the use of the proceeds thereof (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”); (ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment proposed increase; (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2020, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect; (iv) on such date(x) any incremental term loans made pursuant to this Section (the “Incremental Term Loans”) shall have a Maturity Date, except for representations an amortization schedule, and warranties that expressly relate to an earlier dateinterest rates, which shall be true interest margins, rate floors, upfront fees, funding discounts, original issue discounts and correct in all material respects premiums (or in all respects, as applicableincluding prepayment premiums) as of such earlier date; provided that, solely with respect to determined by the establishment of Incremental Term Loan Commitments entered into in connection with Borrower and the financing of a Limited Condition Acquisition, the Lenders lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase)Loans; provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender Maturity Date shall be effected by book entry to no earlier than 180 days after the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount)Termination Date, and (y) effective upon such increase, any Incremental Revolving Commitments provided pursuant to this Section shall have terms that are identical to the existing Revolving Commitments (except for the amount thereof) and the Revolving Loans; (v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the participations held by each Revolving Loan Lender financial covenants set forth in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination Article VI as of the Required Lenders and such Lenders will not constitute a separate voting class most recently ended Fiscal Quarter for any purposes under this Agreement. Any Incremental Term Loans shall be entitled which financial statements are required to have been delivered, calculated as if all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of payment, the Liens securing first day of the relevant period for testing compliance; (vi) if the Initial Yield applicable to any such Incremental Term Loans may be subordinated or such Incremental Term exceeds by more than 0.50% per annum the sum of the Applicable Margin then in effect for existing Revolving Loans may be unsecuredplus one-fourth of the Up Front Fees paid in respect of the existing Revolving Loans (the “Existing Yield”), in each case, then the Applicable Margin of all existing Revolving Loans shall increase by an amount equal to the extent set forth in an amendment to this Agreement as mutually agreed by difference between the Borrower, the Administrative Agent Initial Yield and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.Existing Yield;
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The Borrower mayFrom time to time after the Closing Date and in accordance with this Section, upon at least 10 days’ written notice Parent, the Borrowers, and one or more Increasing Lenders or Additional Lenders (or each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such shorter period increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $15,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Loan Parties shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materialitymateriality qualifier, in which case such representations and warranties shall be true and correct in all respects), and, since March 27, 2016, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) on such date, except for representations any incremental Commitments shall have a termination date no earlier than the Revolving Commitment Termination Date;
(v) Parent and warranties that expressly relate to an earlier date, which its Subsidiaries shall be true in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Month for which financial statements are required to have been delivered, calculated as if all such Incremental Revolving Commitments had been established (and correct in all material respects (or in all respects, as applicablefully funded) as of such earlier date; provided that, solely with respect to the establishment first day of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing relevant period for testing compliance;
(vi) [reserved];
(vii) any collateral securing any such Incremental Term Loan Commitments may agree to shall also secure all other Obligations on a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummatedpari passu basis; and
(iiiviii) provides that the only representations all other terms and warranties the making of which conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrower Agent shall provide at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a condition copy of such notice to funding thereof each Lender) of any proposal to establish an Incremental Commitment (or such shorter period as shall be agreed by the Administrative Agent). The Borrower Agent may also, but is not required to, specify any fees offered to those Lenders (xthe “Increasing Lenders”) certain “specified representations” that agree to increase the principal amount of their Revolving Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice (or such shorter period of time as shall have been agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect Administrative Agent), specify in a written notice to the applicable target in Borrower Agent and the Limited Condition Acquisition Agreement Administrative Agent the amount of such proposed Incremental Commitment that are material it is willing to the interests of the Lenders, but only to the extent that the Borrower provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Restricted Subsidiaries) has the right Revolving Commitment, and any decision by a Lender to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate increase its Revolving Commitment Amount shall automatically be increased by made in its sole discretion independently from any other Lender. Only the amount consent of the Revolving Commitments added through such agreement and Schedule II each Increasing Lender shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any required for an increase in the aggregate principal amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Section. No Lender which declines to increase the principal amount of its Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that Commitment may be replaced with respect to this subclause its existing Revolving Commitment as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower Agent and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice (xor such shorter period of time as shall have been agreed to by the Administrative Agent), (A) the prepayment to, and borrowing from, any existing such Lender shall be effected by book entry deemed to have declined to increase its Revolving Commitment. Parent and Borrowers may accept some or all of the offered amounts or designate new lenders that are acceptable to the extent that any Administrative Agent (such approval not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment. Parent, the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicableBorrowers, and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments of the Increasing Lenders plus the Revolving Commitments of the Additional Lenders shall make and receive payments among themselvesnot in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to the foregoing provisions of this Section, any increase requested by the Borrowers shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in a manner form and substance reasonably acceptable to the Administrative Agent, so thatexecuted by each Borrower, after giving effect theretoby each Additional Lender and by each Increasing Lender, setting forth the Loans new Revolving Commitments of such Lenders are held ratably and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the Lenders terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of Parent and the Borrowers with respect to such Class Incremental Commitment and such opinions of counsel for Parent and the Borrowers with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of Parent and each Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments issued by each Borrower in accordance with Section 2.12; and
(v) any other certificates or documents that the respective Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of such Class of such Lenders (after giving each Lender will be adjusted to give effect to the Incremental Revolving Commitments and Schedule I shall automatically be deemed amended accordingly.
(d) If any Incremental Commitments are to have terms that are different from the Revolving Commitments outstanding immediately before the effectiveness thereof (any such Additional Commitment AmountIncremental Commitments, the “Non-Conforming Credit Extensions”), and (y) effective upon all such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding terms shall be adjusted automatically such thatas set forth in a separate assumption agreement among the Parent, after giving effect to such adjustmentseach Borrower, the Lenders shall hold participations in each providing such Letter Incremental Commitments and the Administrative Agent, the execution and delivery of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment which agreement shall be included in any determination a condition to the effectiveness of the Required Lenders and such Lenders will not constitute a separate voting class for Non-Conforming Credit Extensions. If the Parent or any purposes Borrower incurs Incremental Commitments under this Agreement. Any Section, regardless of whether such Incremental Term Commitments are Non-Conforming Credit Extensions, the Borrowers shall, after such time, repay and incur Revolving Loans shall be entitled to all ratably as between the benefits afforded by, this Agreement Incremental Commitments and the other Loan Documents, and shall, without limiting Revolving Commitments outstanding immediately before the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, effectiveness thereof. Notwithstanding anything to the extent set forth contrary in an amendment to this Agreement as mutually agreed by the BorrowerSection 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in this clause (d), amendments to ensure pro rata allocations of Loans among all Lenders and amendments to implement ratable participation in Letters of Credit between the Non-Conforming Credit Extensions consisting of Incremental Commitments and the Additional Lenders or such other Lenders, in each case who are providing such Revolving Commitments outstanding immediately before the effectiveness of the Incremental Term Loan CommitmentCommitments).
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The Borrower mayFrom time to time after the Restatement Effective Date and in accordance with this Section, upon at least 10 days’ written notice Parent, the Borrowers, and one or more Increasing Lenders or Additional Lenders (or each as defined below) may enter into an agreement to increase the Aggregate Revolving Commitments hereunder (each such shorter period increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $50,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Loan Parties shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materialitymateriality qualifier, in which case such representations and warranties shall be true and correct in all respects), and, since March 26, 2017, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) on such date, except for representations any incremental Commitments shall have a termination date no earlier than the Revolving Commitment Termination Date;
(v) Parent and warranties that expressly relate to an earlier date, which its Subsidiaries shall be true in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Month for which financial statements are required to have been delivered, calculated as if all such Incremental Revolving Commitments had been established (and correct in all material respects (or in all respects, as applicablefully funded) as of such earlier date; provided that, solely with respect to the establishment first day of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing relevant period for testing compliance;
(vi) [reserved];
(vii) any collateral securing any such Incremental Term Loan Commitments may agree to shall also secure all other Obligations on a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummatedpari passu basis; and
(iiiviii) provides that the only representations all other terms and warranties the making of which conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrower Agent shall provide at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a condition copy of such notice to funding thereof each Lender) of any proposal to establish an Incremental Commitment (or such shorter period as shall be agreed by the Administrative Agent). The Borrower Agent may also, but is not required to, specify any fees offered to those Lenders (xthe “Increasing Lenders”) certain “specified representations” that agree to increase the principal amount of their Revolving Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice (or such shorter period of time as shall have been agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect Administrative Agent), specify in a written notice to the applicable target in Borrower Agent and the Limited Condition Acquisition Agreement Administrative Agent the amount of such proposed Incremental Commitment that are material it is willing to the interests of the Lenders, but only to the extent that the Borrower provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Restricted Subsidiaries) has the right Revolving Commitment, and any decision by a Lender to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate increase its Revolving Commitment Amount shall automatically be increased by made in its sole discretion independently from any other Lender. Only the amount consent of the Revolving Commitments added through such agreement and Schedule II each Increasing Lender shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any required for an increase in the aggregate principal amount of the Revolving Commitments pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment may be replaced with respect to its existing Revolving Commitment as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower Agent and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice (or such shorter period of time as shall have been agreed to by the Administrative Agent), such Lender shall be deemed to have declined to increase its Revolving Commitment. Parent and Borrowers may accept some or all of each Increasing Lender’s offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section 2.24 (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment; provided, however, that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, foregoing to the extent the Borrower elects contrary notwithstanding, Parent and Borrowers shall accept so much of each Increasing Lender’s offered amount as is equal to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after such Increasing Lender’s Pro Rata Share of such Incremental Commitment (as determined before giving effect to such increaseIncremental Commitment). Subject to the proviso of the immediately preceding sentence, until Parent, the Borrowers, and the Administrative Agent shall have discretion jointly to adjust the allocation of such time as all outstanding Incremental Revolving Loans are held Commitments among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments of the Increasing Lenders plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to the foregoing provisions of this Section, any increase requested by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender Borrowers shall be effected by book entry effective upon delivery to the extent that any portion Administrative Agent of each of the amount prepaid to such Lender will be subsequently borrowed from such Lender and following documents:
(Bi) the existing Revolving Loan Lendersan originally executed copy of a commitment increase or an instrument of joinder, as applicable, in form and the Additional Lenders shall make and receive payments among themselves, in a manner substance reasonably acceptable to the Administrative Agent, so thatexecuted by each Borrower, after giving effect theretoby each Additional Lender and by each Increasing Lender, setting forth the Loans new Revolving Commitments of such Lenders are held ratably and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the Lenders terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of Parent and the Borrowers with respect to such Class Incremental Commitment and such opinions of counsel for Parent and the Borrowers with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of Parent and each Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments issued by each Borrower in accordance with Section 2.12; and
(v) any other certificates or documents that the respective Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of such Class of such Lenders (after giving each Lender will be adjusted to give effect to the Incremental Revolving Commitments and Schedule I shall automatically be deemed amended accordingly.
(d) If any Incremental Commitments are to have terms that are different from the Revolving Commitments outstanding immediately before the effectiveness thereof (any such Additional Commitment AmountIncremental Commitments, the “Non-Conforming Credit Extensions”), and (y) effective upon all such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding terms shall be adjusted automatically such thatas set forth in a separate assumption agreement among the Parent, after giving effect to such adjustmentseach Borrower, the Lenders shall hold participations in each providing such Letter Incremental Commitments and the Administrative Agent, the execution and delivery of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment which agreement shall be included in any determination a condition to the effectiveness of the Required Lenders and such Lenders will not constitute a separate voting class for Non-Conforming Credit Extensions. If the Parent or any purposes Borrower incurs Incremental Commitments under this Agreement. Any Section, regardless of whether such Incremental Term Commitments are Non-Conforming Credit Extensions, the Borrowers shall, after such time, repay and incur Revolving Loans shall be entitled to all ratably as between the benefits afforded by, this Agreement Incremental Commitments and the other Loan Documents, and shall, without limiting Revolving Commitments outstanding immediately before the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, effectiveness thereof. Notwithstanding anything to the extent set forth contrary in an amendment to this Agreement as mutually agreed by the BorrowerSection 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in this clause (d), amendments to ensure pro rata allocations of Loans among all Lenders and amendments to implement ratable participation in Letters of Credit between the Non-Conforming Credit Extensions consisting of Incremental Commitments and the Additional Lenders or such other Lenders, in each case who are providing such Revolving Commitments outstanding immediately before the effectiveness of the Incremental Term Loan CommitmentCommitments).
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and before the date that is ninety (90) days prior to the Revolving Commitment Termination Date, and in accordance with this Section, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, upon at least 10 days’ written notice an “Incremental Commitment”), so long as the following conditions are satisfied:
(or i) the aggregate principal amount of all such shorter period Incremental Commitments made pursuant to this Section shall not exceed $25,000,000.00 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2013, or, if and as applicable, the date of the most-recent financial statements actually delivered by Borrower pursuant to Section 5(a) on such dateof this Agreement, except for representations there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have a termination date no earlier than the Revolving Commitment Termination Date;
(v) the Borrower and warranties that expressly relate to an earlier date, which its Subsidiaries shall be true and correct in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all material respects such Incremental Revolving Commitments had been established as of the first day of the relevant period for testing compliance;
(or vi) if the Initial Yield applicable to any such Incremental Revolving Commitments exceeds by more than 0.50% per annum, the sum of the Applicable Margin then in all respectseffect for SOFR Revolving Loans, as applicable) , plus one-fourth of the Up-Front Fees paid in respect of the existing Revolving Commitments, as applicable (the “Existing Yield”), then the Applicable Margin of such earlier date; provided thatthe existing Revolving Loans, solely with respect as applicable, shall increase by an amount equal to the establishment of Incremental Term Loan Commitments entered into in connection with difference between the financing of a Limited Condition Acquisition, Initial Yield and the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummatedExisting Yield minus 0.50% per annum; and
(iiivii) provides that the only representations all other terms and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or conditions with respect to the applicable target in the Limited Condition Acquisition Agreement that are material any such Incremental Commitments shall be reasonably satisfactory to the interests Administrative Agent.
(b) The Borrower shall provide at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment (each an “Incremental Commitment Notice”). Within the first thirty (30) days after ▇▇▇▇▇▇▇▇’s delivery of any Incremental Commitment Notice (the “Exclusive Option Period”), Truist Bank shall have the sole and exclusive right (without obligation) to elect to provide all or a portion of such Incremental Commitment. Following the expiration of the LendersExclusive Option Period, but only any Lender or Increasing Lender offered or approached to provide all or a portion of any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment to the extent not exercised and elected by Truist Bank during the Exclusive Option Period. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Restricted Subsidiaries) has the right Revolving Commitment, and any decision by a Lender to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate increase its Revolving Commitment Amount shall automatically be increased by made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments added through pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment may be replaced with respect to its existing Revolving Commitment, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments of the Increasing Lenders plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent.
(d) Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments, and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitmentsaccordingly.
(ge) Upon If any increase in the aggregate amount of Incremental Revolving Commitments are to have terms that are different from the Revolving Commitments outstanding immediately prior to such incurrence (any such Incremental Revolving Commitments, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among the Borrower, the Lenders providing such Incremental Revolving Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Non-Conforming Credit Extensions. If the Borrower incurs Incremental Revolving Commitments under this Section, regardless of whether such Incremental Revolving Commitments are Non-Conforming Credit Extensions, the Borrower shall, after such time, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section 2.24 that is not and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case allocations of any SOFR Loans and Base Rate Loans then outstanding, between Loans incurred pursuant to this Section and at Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the end Non-Conforming Credit Extensions consisting of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, Incremental Revolving Commitments and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion Commitments outstanding immediately prior to their respective Revolving Commitments after giving effect to any such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increaseincurrence); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(hf) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination For purposes of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of paymentSection, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to following terms shall have the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.meanings specified below:
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The Borrower mayshall have the right, upon at least 10 days’ written notice (or such shorter period as may be permitted by without the consent of the Lenders but with the prior approval of the Administrative Agent Agent, not to be unreasonably withheld, to cause from time to time an increase in its sole discretion) the total Commitments of the Lenders by adding to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish this Agreement one or more incremental term loan commitments additional Lenders (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”)) or by allowing one or more Lenders (each a “Consenting Lender”) to increase their respective commitments; provided however (i) no Event of Default shall have occurred hereunder which is continuing, which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cii) plus the Revolving Commitments of the Additional Lenders no such increase shall not in cause the aggregate Commitments hereunder to exceed the unsubscribed amount of the Additional $1,000,000,000, and (iii) no Lender’s Commitment Amount in the case of a request to shall be increase the Aggregate Revolving Commitmentswithout such Lender’s consent.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(eb) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.6 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder (i) an agreement in form and substance reasonably satisfactory to the Administrative Agent executed signed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increasedConsenting Lender, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and together with such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions Notes executed and amortization schedule applicable to such Incremental Term Loans shall be determined delivered by the Borrower for each Consenting Lender and each Additional Lender requesting the Lenders holding the Incremental Term Loan same, evidencing such Lenders' Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fc) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount total Commitments shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II 2 shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan additional Commitments or Revolving Commitmentsand Additional Lenders, as applicable.
(gd) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.6 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling Borrowings then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling Eurodollar Borrowings then outstanding, the Borrower shall prepay such Loans Borrowings in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3V, the Borrower shall reborrow the Revolving Loans Borrowings from the Revolving Loan Lenders (including any Additional Lenders) in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans Borrowings are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to including any Additional Lenders) in such Additional Commitment Amount), proportion and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender the Lenders (including any Additional Lenders) in each Letter of Credit then outstanding the LC Outstandings shall be adjusted automatically such such-that, after giving effect to such adjustments, the Lenders each Lender (including each Additional Lender) shall hold participations in each such Letter of Credit LC Outstandings in the proportion to their its respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, bears to the extent set forth in an amendment aggregate Commitments after giving effect to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitmentincrease.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The Borrower mayIncrease of the Revolving Loan Commitments.
(i) So long as no Event of Default has occurred and is continuing, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent Borrower, on behalf of Borrowers, may request the right to effectuate increases in its sole discretion) the Revolving Loan Commitments (any such increase, a “Commitment Increase”), in an aggregate amount of up to $50,000,000 for all such Commitment Increases (the “Commitment Increase Cap”), during the term of this Agreement by delivering a Notice of Requested Commitment Increase to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender)Agent, propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisitionprovided that, in accordance with Section 1.7(a)each case: (A) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which each Commitment Increase shall be in minimum increments of $10,000,000), ; (B) the “Additional proposed Commitment Amount”).
(b) In Increase shall have been consented to in writing by the case of a request to increase the Aggregate Revolving CommitmentsAdministrative Agent, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase (if any) who is increasing its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned Agent that has agreed to become a Lender in respect of all or delayed. The sum a portion of the increases in Commitment Increase (a “New Lender”); (C) the pricing and other terms applicable to the Commitment Increase shall be the same as those applicable to the existing Revolving Commitments Loan Commitments; (D) the proposed Commitment Increase, together with any prior Commitment Increase, shall not exceed the Commitment Increase Cap; (E) Availability, measured on a pro forma basis after giving effect to the Commitment Increase, for the five consecutive Business Days prior to the Commitment Increase is at least $20,000,000; and (F) the Fixed Charge Coverage Ratio as of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments end of the Additional Lenders fiscal month most recently ended for which the Administrative Agent has received financial statements at the time of the Commitment Increase, for the period of the immediately preceding twelve (12) months, of not less than 1.00:1.00. Each Notice of Requested Commitment Increase shall not in specify: (1) the aggregate exceed the unsubscribed amount of the Additional proposed Commitment Amount Increase and (2) the requested date of the proposed Commitment Increase (which shall be at least thirty (30) days from the date of delivery of the Notice of Requested Commitment Increase). Each Notice of Requested Commitment Increase shall be binding on all Borrowers. Upon the effective date of any Commitment Increase, the Administrative Borrower shall deliver to the Administrative Agent a certificate of the chief financial officer of the Administrative Agent certifying that no Default or Event of Default then exists or would be caused thereby and that the conditions set forth in clause (D), (E) and (F) are satisfied. No Commitment Increase shall be effective until the case Administrative Agent shall have received amendments to this Agreement and the other Loan Documents, commitments of Lenders or New Lenders in an aggregate amount equal to such Commitment Increase, agreements for each Lender or New Lender committing to such Commitment Increase (each, a request “Lender Agreement”), any upfront fees to increase be paid to the Aggregate Lenders committing to such Commitment Increase, and such opinion letters, Revolving CommitmentsLoan Notes and other agreements, documents and instruments requested by and reasonably satisfactory to the Administrative Agent in its reasonable discretion evidencing and setting forth the conditions of such Commitment Increase.
(dii) If the Administrative Agent approves a proposed Commitment Increase, the Administrative Agent shall deliver a copy of the Notice of Requested Commitment Increase relating thereto to each Lender. No Lender (or any successor thereto) shall have any obligation to increase its Revolving Loan Commitment or its other obligations under this Agreement and or the other Loan Documents or provide an Incremental Term Loan CommitmentDocuments, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase . If the Administrative Agent receives commitments from the Lenders or the New Lenders in excess of the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving proposed Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the BorrowerIncrease, the Administrative Agent and shall have the Additional Lenders or such other Lendersright, in its sole discretion, to reduce and reallocate (within the minimum and maximum amounts specified by each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable Lender or New Lender in its notice to the Administrative Agent and (iiAgent) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to shares of such Incremental Term Loans shall be determined by the Borrower and Commitment Increase of the Lenders holding or New Lenders willing to fund the Incremental Term Loan Commitmentsproposed Commitment Increase so that the total committed shares of the proposed Commitment Increase equals the proposed Commitment Increase. In connection with The Administrative Agent shall notify each Lender or New Lender, as the foregoingcase may be, whether its proposed share of the proposed Commitment Increase has been accepted and, if so, the amount of its share of such Commitment Increase, and notwithstanding anything in Section 10.2 such Lender shall thereafter execute and deliver a Lender Agreement with respect to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional its respective share of such Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional LendersIncrease.
(iiii) Notwithstanding anything to the contrary contained herein, each Commitment Increase meeting the conditions set forth in Section 3.2, an increase in 2.17(a)(i) shall not require the aggregate amount consent of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (any Lender other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materialityLenders, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier dateif any, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect have agreed to the establishment of Incremental Term increase their Revolving Loan Commitments entered into in connection with such Commitment Increase and shall not constitute an amendment, modification or waiver that is subject to Section 11.12 and shall be effective as of the financing later of a Limited Condition Acquisition, (a) the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event date specified in the applicable Notice of Default (other than any Default or Event of Default under Section 8.1(a), Requested Commitment Increase and (b), (h), (i) or (j)) the date upon which the foregoing conditions shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default been satisfied or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to waived by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders which have agreed to increase their Revolving Loan Commitments, or such other Lendersby the Required Lenders in accordance with Section 11.12 in the case of a waiver of an Event of Default, in each case who are providing such Incremental Term Loan Commitmentas applicable.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, 2.23, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, upon at least 10 days’ written notice an “Incremental Commitment”) so long as (or other than with respect to the JBBR Acquisition Incremental Commitments) the following conditions are satisfied:
(i) the aggregate principal amount of all such shorter period Incremental Commitments made pursuant to this Section 2.23 after the Second Amendment Effective Date (but excluding the JBBR Acquisition Incremental Commitments) shall not exceed $100,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing exist and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on except to the extent any such date, except for representations and warranties that expressly representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be have been true and correct in all material respects (or in all respects, as applicable) on and as of such earlier date;
(iv) the MLP and its Restricted Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if any Borrowing made on the date such Incremental Commitments are established had been funded as of the first day of the relevant period for testing compliance;
(v) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis; and
(vi) all terms and conditions with respect to any such Incremental Commitments shall be the same as those contained in the Loan Documents or otherwise reasonably satisfactory to the Administrative Agent; provided that, solely that any upfront fees paid with respect to such Incremental Commitments may be greater than the upfront fees paid with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or existing Revolving Commitments.
(gb) Upon The Borrower shall provide at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment (other than the JBBR Acquisition Incremental Commitments). The Borrower may also, but is not required to, specify any fees offered to those Lenders that agree to increase the principal amount of their Revolving Commitments (the “Increasing Lenders”), which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Section. No Lender which declines to increase the principal amount of its Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that Commitment may be replaced with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the its existing Revolving Loan Lenders, Commitment as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of result thereof without such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.Lender’s
Appears in 1 contract
Sources: Revolving Credit Agreement
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower may, upon at least 10 days’ written notice and one or more Increasing Lenders or Additional Lenders (or such shorter period each as defined below) may be permitted by enter into an agreement to increase the Administrative Agent in its sole discretion) to aggregate principal amount of the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) and/or establish one or more incremental term loan commitments new tranches of Incremental Term Loan Commitments hereunder (any each such incremental term loan commitmentincrease or additional tranche, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio following conditions are satisfied:
(determined (1i) after giving effect the aggregate principal amount of all such Incremental Commitments made pursuant to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with this Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) exceed $500,000,000 (the principal amount of any each such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)Incremental Commitment, the “Additional Incremental Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an each such Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate a minimum amount of the Revolving Commitments $10,000,000 or the establishment increments of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder $5,000,000 in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and excess thereof;
(ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.[Reserved];
(iiii) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofCommitment, (x) no Default or Event of Default shall have occurred exist; provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Commitment and the Administrative Agent may agree that such condition shall be continuing and limited to an absence of an Event of Default as of the date of the execution of the definitive documentation with respect to such Acquisition, (y) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on as of the date of the establishment of such dateIncremental Commitment (or, except for representations and warranties that expressly relate if such representation or warranty relates to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date); provided that, solely with respect to that in the establishment case of any Incremental Term Loan Commitments entered into in connection with Commitment obtained for the purposes of financing of a Limited Condition Acquisitionan Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Term Loan Commitments Commitment may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof such Incremental Commitment (and the Incremental Term Loans or Revolving Loans provided thereunder) shall be (xI) certain “specified representations” agreed to by the Lenders providing such Commitments Specified Representations and (yII) the representations and warranties made by or with respect to on behalf of the applicable target in the Limited Condition purchase, acquisition or similar agreement governing such Acquisition Agreement that or other Investment as are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted the Borrower’s applicable Affiliates or Subsidiaries) has the right (determined without regard to any notice requirement) not to consummate or the right to terminate (or cause the termination of) the Borrower’s (or such Restricted Subsidiary’sAffiliates’ or Subsidiaries’) obligations under such Limited Condition Acquisition Agreement purchase, acquisition or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement other agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement purchase, acquisition or other agreement (or the failure of such representations or warranties to be true and correct accurate or to satisfy the closing conditions in such Limited Condition Acquisition Agreement purchase, acquisition or other agreement applicable to such representations or warranties).
) (f) Upon the acceptance of any such agreement by the Administrative Agentrepresentations and warranties, the Aggregate Revolving Commitment Amount shall automatically be increased by “Specified Target Representations”) and (z) to the amount extent there is a condition that no Material Adverse Effect exists as of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect date of the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition initial funding of such Incremental Term Loan Commitments Commitment, such condition shall be limited to the target of such Acquisition or Revolving Commitments.Investment, in such manner and to the extent required to be satisfied under the definitive documentation with respect to such Acquisition;
(giv) Upon (x) any increase in the aggregate amount of the Revolving Commitments incremental Term Loans made pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders(the “Incremental Term Loans” and, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month commitments with respect thereto, the “Incremental Term Loan Commitments”) shall have a maturity date no earlier than the Revolving Commitment Termination Date in effect at the case time such Incremental Term Loans are incurred and shall have a Weighted Average Life to Maturity no shorter than that of any Index Rate previously established Incremental Term Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after (without giving effect to previous reductions in and previously made amortization payments on such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amountpreviously established Incremental Term Loans), and (y) effective upon any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have identical terms (including pricing and termination date; provided that upfront fees for any Incremental Revolving Commitments will be permitted and shall be determined by the Borrower and the Lenders providing such increaseIncremental Revolving Commitments) to the Revolving Commitments and be treated as the same Class as the Revolving Commitments and the Borrower shall, after the amount establishment of any Incremental Revolving Commitments pursuant to this Section, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such increase (provided that such repayment and incurrence may, with the Administrative Agent’s consent, be effectuated through assignments among Lenders with Revolving Commitments, which shall not require an Assignment and Acceptance and may be effectuated by the Administrative Agent through changes in the Register and fundings from such Lenders providing Incremental Commitments); provided, further, that Interest Periods applicable to Incremental Term Loans or Revolving Loans advanced pursuant to Incremental Revolving Commitments may, at the election of the participations held by each Administrative Agent and the Borrower, be made with Interest Period(s) identical to the then remaining Interest Period(s) applicable to existing Term Loans of the relevant Class or existing Revolving Loan Lender in each Letter Loans of Credit then outstanding the applicable Class (and allocated to such Interest Period(s) on a proportional basis); and
(v) the Borrower and its Subsidiaries shall be adjusted automatically such thatin pro forma compliance with each of the Financial Covenants, calculated after giving effect to the funding of such adjustmentsIncremental Term Loans or Incremental Revolving Commitments (assuming such Incremental Revolving Commitments were fully funded), as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered or were required to have been delivered pursuant to Section 5.1(a) or 5.1(b) (including giving effect to the use of proceeds thereof and to any Acquisition consummated after the end of the such Fiscal Quarter and on or prior to such date which is funded with such Incremental Term Loans or Incremental Revolving Commitments); provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Commitment may agree that such pro forma compliance shall hold participations in each be tested as of the date of the execution of the definitive documentation with respect to such Letter of Credit in proportion to their respective Revolving CommitmentsAcquisition.
(hb) The Additional Borrower shall provide at least ten (10) Business Days’ (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or provide Incremental Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or the principal amount of the Incremental Term Loan Commitment such Lender is willing to provide, as applicable. No Lender (or existing Lenders providing any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or provide an Incremental Term Loan Commitment shall be included made in its sole discretion independently from any determination other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Required Lenders and such Lenders will not constitute Revolving Commitments and/ or the establishment of a separate voting class for any purposes under this Agreement. Any tranche of Incremental Term Loan Commitments, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicable, as a result thereof without such ▇▇▇▇▇▇’s consent. The Borrower may accept some or all of the offered amounts from existing Lenders or designate new lenders that are acceptable to the Administrative Agent (any such consent (x) to be required only to the extent required under Section 10.4(b) for an assignment of Loans shall or Commitments of such Type to such new lender and (y) not to be entitled to all the benefits afforded by, this Agreement unreasonably withheld) and the other Loan DocumentsBorrower as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), and shall, without limiting which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower shall have discretion to adjust the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders (as it may elect). The sum of the increase in the principal amount of the Revolving Commitments and the aggregate principal amount of the Incremental Term Loan Commitments of the Increasing Lenders plus the principal amount of the Revolving Commitments and the aggregate principal amount of the Term Loan Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any increase requested by the Borrower shall be subordinated effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder (each, an “Incremental Commitment Joinder”), in right form and substance reasonably acceptable to the Administrative Agent, executed by the Administrative Agent, by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Revolving Commitments and/or Incremental Term Loan Commitments, as applicable, of paymentsuch Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Liens securing Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans may be subordinated Loans, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request in connection with and at the time of any such proposed increase. Upon the effectiveness of any such Incremental Term Loans may Commitment, the Commitments and Pro Rata Share of each Lender will be unsecured, in each case, adjusted to give effect to the extent Incremental Revolving Commitments and/or the Incremental Term Loans, as applicable, and Schedule I shall automatically be deemed amended accordingly.
(d) If any Incremental Term Loan Commitments are to be established pursuant to this Section, other than as set forth herein, all terms with respect thereto shall be as set forth in an amendment the applicable Incremental Commitment Joinder, the execution and delivery of which agreement shall be a condition to this Agreement as mutually agreed by the Borrowereffectiveness of the establishment of the Incremental Term Loan Commitments. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent and the Additional Lenders or such other Lenders, Borrower are expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase in each case who are providing such Revolving Commitments and/or establishment of a new Incremental Term Loan CommitmentCommitment pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding sentence or the foregoing clause (a)(iv)(y) of this Section, amendments to ensure pro rata allocations of SOFR Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) This Section 2.23 shall supersede any provisions in Section 2.21 or Section 10.2 to the contrary.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (CareTrust REIT, Inc.)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, the Borrower may, upon at least 10 20 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed $50,000,000 in the sum aggregate (and in minimum increments of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)10,000,000) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)commitment, the “Additional Commitment Amount”), but in any event, no more than four (4) such elections shall be made during the term of this Agreement.
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments. In the case of a request for Incremental Term Loan Commitments, the sum of the Incremental Term Loan Commitments shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Strayer Education Inc)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 10 30 days’ ' written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, to an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 225,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “"Additional Commitment Amount”").
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan . Each Lender shall have the right for a period of 5 Business Days 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.242.21, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “"Additional Lender”"), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.21 shall become effective upon the receipt by the Administrative Agent of a an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving together with Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentCommitments, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.21 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Sources: Revolving Credit Agreement (Northern Border Pipeline Co)
Increase of Commitments; Additional Lenders. (a) The Borrower mayFrom time to time after the Closing Date and in accordance with this Section 4.15, upon at least 10 days’ written notice the Borrowers and one (1) or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the Aggregate Floor Plan Commitments hereunder (each such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lenderincrease, an “Incremental Commitment”), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more increases to the Initial Term Loan or separate incremental term loan commitments tranches (any each such term loan increase or separate incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loantranche, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio following conditions are satisfied:
(determined (1i) after giving effect to the aggregate principal amount of all such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Incremental Commitments and all Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be Loans made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 4.15 shall become effective upon not exceed $0;
(ii) the receipt Borrowers shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of a supplement any such proposed Incremental Commitment or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.Loan;
(iiii) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments Incremental Commitment or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofLoan, no Default or Event of Default shall have occurred and be continuing exist and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on except to the extent such date, except for representations and warranties that expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such date (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects);
(iv) any increase in Aggregate Floor Plan Commitments shall be part of, and shall have terms identical to those of, the other Floor Plan Commitments under this Agreement, except for fees payable to the Lenders providing commitments for such increase in the Aggregate Floor Plan Commitments;
(v) amortization, pricing and use of proceeds applicable to any Incremental Term Loan established as applicablea separate term loan tranche (rather than as an additional advance under the Initial Term Loan) shall be as of set forth in the definitive documentation establishing such earlier dateIncremental Term Loan; provided that, solely that (A) any such Incremental Term Loan shall have a final maturity date that is no earlier than the Maturity Date with respect to any Term Loan (including any other then-existing Incremental Term Loan), (B) the establishment weighted average life to maturity (determined by the Administrative Agent in accordance with its customary financial practice) of such Incremental Term Loan Commitments entered into in connection with shall not be shorter than the financing weighted average life to maturity of a Limited Condition Acquisitionany Term Loan (including any other then-existing Incremental Term Loan), (C) the terms of such Incremental Term Loan (other than pricing, maturity, amortization, premiums and other economic terms, which shall be agreed among the Borrowers and the Lenders providing such Incremental Term Loan) shall be (1) consistent with the terms of the Initial Term Loan Commitments may agree or (2) not materially, subject to the preceding clauses (A) and (B) more restrictive to the Loan Parties when taken as a “funds certain provision” that:whole than the terms of the Initial Term Loan and reasonably satisfactory to the Administrative Agent, and (D) any Incremental Term Loan constituting an additional advance under or increase to the Initial Term Loan shall be part of, and shall be on the same terms (including amortization, pricing and maturity) as, the Initial Term Loan (except for fees payable to the Lenders providing such additional advance under or increase to the Initial Term Loan);
(iivi) does not impose the Loan Parties and their Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VIII as a condition of the most recently ended Fiscal Quarter for which financial statements are required to funding thereof that no Default have been delivered pursuant to Section 7.1(a) or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), calculated as if all such Incremental Term Loans had been made and all such Incremental Commitments had been established and fully funded (h)and giving effect to the use of proceeds thereof) as of the first day of the relevant period for testing compliance;
(vii) any collateral securing any such Incremental Commitments or Incremental Term Loans shall also secure all other Obligations on a pari passu basis;
(viii) in addition to the other applicable conditions to effectiveness set forth herein, any Incremental Commitments or Incremental Term Loan Commitments shall be effective only upon receipt by the Administrative Agent of (iA) additional Floor Plan Commitments in a corresponding amount of such requested Incremental Commitments, or Incremental Term Loan Commitments in a corresponding amount of such requested Incremental Term Loans, from either existing Lenders and/or one or more other institutions that qualify as assignees under Section 12.5 (j)each such institution, an “Additional Lender”) and (B) documentation from each existing Lender or Additional Lender providing an Incremental Commitment or Incremental Term Loan Commitment evidencing its agreement to provide an Incremental Commitment and/or Incremental Term Loan Commitment and its acceptance of the obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent; and
(ix) all other terms and conditions with respect to any such Incremental Commitments and Incremental Term Loan Commitments shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrowers shall provide at least twenty (20) days’ (or such shorter period as is consented to by the Administrative Agent) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment or Incremental Term Loan Commitment. The Borrowers may also, but are not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Floor Plan Commitments and/or provide any Incremental Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Floor Plan Commitment and/or provide an Incremental Term Loan Commitment, as applicable. Each Increasing Lender shall as soon as practicable, and in any case within ten (10) Business Days following receipt of such notice, specify in a written notice to the Borrowers and the Administrative Agent the amount of such proposed Incremental Commitment or Incremental Term Loan Commitment that it is willing to provide. No Lender (or any successor thereto) shall have occurred any obligation, express or implied, to offer to increase the aggregate principal amount of its Floor Plan Commitment, or to provide any Incremental Term Loan Commitment, and any decision by a Lender to do so shall be continuing at made in its sole discretion independently from any other Lender. Neither the time Arranger nor any Lender shall have any responsibility for arranging any such Limited Condition Acquisition is consummatedIncremental Commitments or Incremental Term Loan Commitments without their prior written consent and subject to such conditions, including fee arrangements, as they may provide in which event connection therewith. Only the condition consent of each Increasing Lender (and, if applicable, each Additional Lender with respect to funding thereof any Incremental Commitment or Incremental Term Loan Commitment) shall instead be that required to implement any Incremental Commitment or Incremental Term Loan Commitment, as applicable, pursuant to this Section 4.15 (and, notwithstanding anything to the contrary in Section 12.3, this Agreement may be amended with only the consent of the Increasing Lenders, the Additional Lenders (if any) providing such Incremental Commitments or Incremental Term Loan Commitments, the Borrowers and the Administrative Agent to establish any Incremental Commitment or Incremental Term Loan Commitment in accordance with this Section 4.15 and make such changes as the Administrative Agent deems appropriate in connection therewith (including to (x) no Default or Event increase the amount of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date required monthly principal payments for the Initial Term Loan in connection with respect an Incremental Term Loan that is an increase to such Limited Condition Acquisition the Initial Term Loan and (y) no Default if and to the extent any such Incremental Commitment or Event Incremental Term Loan Commitment is being established to finance the acquisition of Default under a Kia, Hyundai or Subaru dealership, or any other dealership for which the relevant manufacturer so requires, to make such amendments to this Agreement and the other Loan Documents as the Administrative Agent deems appropriate in order to treat the Obligations in respect of such Incremental Commitment or Incremental Term Loan Commitment in a manner similar to the treatment of the Capital Loan Portion of the Initial Term Loan in Section 8.1(a1.6 hereof, or in such other manner as is necessary to obtain the approval of the relevant manufacturer in connection with such transactions), (b), (h), (i) . No Lender which declines to increase the principal amount of its Floor Plan Commitment or (j) shall have occurred and to provide any Incremental Term Loan Commitment may be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or replaced with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lendersits existing Floor Plan Commitment or Term Loans, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as applicable, as a result of a breach thereof without such Lender’s consent. If any Lender shall fail to notify the Borrowers and the Administrative Agent in writing about whether it will increase its Floor Plan Commitment or provide any Incremental Term Loan Commitment within ten (10) Business Days after receipt of such representations notice, such Lender shall be deemed to have declined to increase its Floor Plan Commitment or warranties provide any Incremental Term Loan Commitment, as applicable. The Borrowers may accept some or all of the offered amounts or designate Additional Lenders hereunder in such Limited Condition Acquisition Agreement (accordance with this Section 4.15, which Additional Lenders may provide all or the failure a portion of such representations Incremental Commitment or warranties to be true Incremental Term Loan Commitment. The Borrowers and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, Agent shall have discretion jointly to adjust the Aggregate Revolving Commitment Amount shall automatically be increased by allocation of such Incremental Commitments and Incremental Term Loan Commitments among the amount Increasing Lenders and the Additional Lenders. The sum of the Revolving increases in the Floor Plan Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving of the Increasing Lenders, plus the Floor Plan Commitments of all Lenders after giving effect to the addition of such and Incremental Term Loan Commitments or Revolving Commitmentsof the Additional Lenders, shall not in the aggregate exceed the limitations on the aggregate amount thereof set forth in Section 4.15(a)(i) in any case.
(gc) Upon Subject to clauses (a) and (b) of this Section 4.15, any increase in Incremental Commitment or Incremental Term Loan Commitment requested by the aggregate amount Borrowers shall be effective upon delivery to the Administrative Agent of each of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, following documents:
(xi) within five Business Daysan originally executed copy of an instrument of joinder, in the case of any Base Rate Loans then outstanding, form and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner substance reasonably acceptable to the Administrative Agent, so thatexecuted by the Loan Parties, after giving effect theretoby each Additional Lender and by each Increasing Lender, setting forth the Loans Incremental Commitments and Incremental Term Loan Commitments, as applicable, of such Lenders are held ratably and the terms thereof and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) all documents (including authorizing resolutions of each Loan Party, incumbency certificates, certified organizational documents and certificates of existence/good standing) as the Administrative Agent reasonably requires relating to corporate matters with respect to each Loan Party and the necessary authority for such Incremental Commitment or Incremental Term Loan Commitment and the validity thereof, and any other matters relevant thereto, together with such opinions of counsel to the Loan Parties with respect to such Incremental Commitment or Incremental Term Loan and the documentation therefor as the Administrative Agent reasonably requires, all in form and substance reasonably satisfactory to the Administrative Agent;
(iii) a certificate of the Borrowers signed by a Responsible Officer thereof, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in clause (a) of this Section has been satisfied (including reasonably detailed calculations of the financial covenants set forth in Article VIII in accordance with subsection (a)(vi) of this Section);
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Commitments or Incremental Term Loans, issued by the Lenders of such Class applicable Borrowers in accordance with the respective Commitments of terms hereof;
(v) such Class of such Lenders amendments to the Collateral Documents as the Administrative Agent requires to ensure that the Obligations (after giving effect to such Additional any Incremental Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment) are secured thereby; and
(vi) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment or the extension of any such Incremental Term Loan, the Commitments and Pro Rata Shares of each Lender will be adjusted to give effect to the Incremental Commitments and/or the Incremental Term Loans, as applicable, and Schedule I shall automatically be deemed amended accordingly.
(d) Subject to the other provisions above in this Section 4.15, each Incremental Term Loan shall be repayable as provided in the documentation establishing such Incremental Term Loan. Amounts repaid on any Incremental Term Loan may not be reborrowed.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan . Each Lender shall have the right for a period of 5 Business Days 20 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC its Commitment or its other obligations under this Agreement and the Swingline Commitmentother Credit Documents, and any decision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.242.19, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.19 shall become effective upon the receipt by the Administrative Agent of a an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving together with Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentCommitments, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.19 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The Borrower may, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so So long as no Event of Default has occurred and is continuing, from time to time after the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition Closing Date and assuming provided that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party Borrower set forth in the Loan Credit Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since September 30, 2020, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect and (b) on Borrower may, upon at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a copy of such datenotice to each Lender), except for representations and warranties that expressly relate propose to increase the Aggregate Commitments up to an earlier dateaggregate amount not to exceed $100,000,000 (the amount of any such increase, the “Additional Commitment Amount”). All Additional Commitments shall have the same terms and conditions applicable to the Commitments established on the Closing Date including without limitation, as to yield, maturity and amortization. The Lenders shall have the right, for a period of 20 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase their Commitments by a principal amount equal to the Additional Commitment Amount, subject to allocations agreed by the Borrower and the Administrative Agent. No Lender (or any successor thereto) shall have any obligation to increase its Commitment or its other obligations under this Agreement and the other Credit Documents, and any decision by a Lender to increase its Commitment shall be made in its sole discretion independently from any other Lender.
(b) If the Lenders do not commit to increase the Commitments by the entire Additional Commitment Amount pursuant to subsection (a) of this Section 2.21, the Borrower may designate another bank or other financial institution (an “Additional Lender”) to become a party to this Agreement; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld or delayed. The sum of the increases in the Commitments of the existing Lenders pursuant to this subsection (b) plus the Commitments of the Additional Lenders shall not in the aggregate exceed the Additional Commitment Amount.
(c) An increase in the Aggregate Commitment Amount pursuant to this Section 2.21 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each existing Lender whose Commitment is to be true and correct in all material respects (or in all respectsincreased, as applicable) as setting forth the new Commitments of such earlier date; provided thatLenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, solely and such evidence of appropriate corporate authorization on the part of the Borrower with respect to the establishment of Incremental Term Loan Commitments entered into increase in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) such opinions of counsel for the representations and warranties made by or Borrower with respect to the applicable target increase in the Limited Condition Acquisition Agreement that are material to Commitments as the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties)Administrative Agent may reasonably request.
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added or increased through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition and increase of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments Aggregate Commitment Amount pursuant to this Section 2.24 2.21 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency EurodollarSOFR Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to . Prepayments made under this subclause (x), (ASection 2.21(e) the prepayment to, and borrowing from, any existing Lender shall not be effected by book entry subject to the extent that any portion notice requirements of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving CommitmentsSection 2.9.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower may, upon at least 10 days’ written notice and one or more Increasing Lenders or Additional Lenders (or such shorter period each as defined below) may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose enter into an agreement to (i) increase either the Aggregate aggregate principal amount of the Revolving Commitments or and/or (ii) establish one or more incremental term loan commitments tranches of Incremental Term Loan Commitments hereunder (any each such incremental term loan commitmentincrease or additional tranche, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan” and the principal amount thereof, an the “Incremental Term LoanCommitment Amount”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio following conditions are satisfied:
(determined i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $30,000,000;
(1ii) after giving effect to the Borrower shall execute and deliver such acquisition documents and assuming that instruments and take such acquisition was consummated on other actions as may be reasonably required by the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) Administrative Agent in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees tosubject, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment (and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the related Incremental Term Loan Commitments) used to finance a Limited Condition Acquisition, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to1.5, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofCommitment, (x) no Default or Event of Default shall exist; provided that (A) in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition not prohibited by this Agreement, the Lenders providing such Incremental Commitment and the Administrative Agent may agree that such condition shall be limited to an absence of an Event of Default under Section 8.1(a), (b), (g), (h) or (i) and (B) if the Borrower makes an LCA Election pursuant to Section 1.5 and such condition is tested as of the applicable LCA Test Date, it shall also be a condition that no Event of Default under Section 8.1(a), (b), (g), (h) or (i) shall have occurred and be continuing or would result from the incurrence of such Incremental Term Loan (and related Term Loan Commitments) and the transactions consummated in connection therewith (including the incurrence of any Indebtedness and the use proceeds thereof) on the date on which such Incremental Term Loan (and related Incremental Term Loan Commitments) is incurred and the applicable Limited Condition Acquisition is consummated, and (y) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on as of the date of the establishment of such dateIncremental Commitment (or, except for representations and warranties that expressly relate if such representation or warranty relates to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date); provided that, solely with respect to that in the establishment case of any Incremental Term Loan Commitments entered into in connection with Commitment obtained for the purposes of financing of a Limited Condition Acquisitionan Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Term Loan Commitments Commitment may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making accuracy of which shall be a condition to funding thereof such Incremental Commitment (and the Incremental Term Loans or Revolving Loans provided thereunder) shall be (xI) certain “specified representations” agreed to by the Lenders providing such Commitments Specified Representations and (yII) the representations and warranties made by or with respect to on behalf of the applicable target in the Limited Condition purchase, acquisition or similar agreement governing such Acquisition Agreement that or other Investment as are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted the Borrower’s applicable Affiliates or Subsidiaries) has the right (determined without regard to any notice requirement) not to consummate or the right to terminate (or cause the termination of) the Borrower’s (or such Restricted Subsidiary’sAffiliates’ or Subsidiaries’) obligations under such Limited Condition Acquisition Agreement purchase, acquisition or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement other agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement purchase, acquisition or other agreement (or the failure of such representations or warranties to be true and correct accurate or to satisfy the closing conditions in such Limited Condition Acquisition Agreement purchase, acquisition or other agreement applicable to such representations or warranties) (such representations and warranties, the “Specified Target Representations”).;
(fiv) Upon the acceptance of (x) any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments incremental term loans made pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders(the “Incremental Term Loans” and, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month commitments with respect thereto, the “Incremental Term Loan Commitments”) shall have a maturity date no earlier than the latest Maturity Date in effect at the case time such Incremental Term Loans are incurred, shall have a Weighted Average Life to Maturity no shorter than that of any Index Rate then-outstanding Term Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after (without giving effect to previous reductions in and previously made amortization payments on such increaseTerm Loans) and shall otherwise have terms (other than pricing and any representations, until warranties, covenants and other provisions applicable only to periods after the latest Maturity Date hereunder at such time as all outstanding Revolving time) that either are consistent with the applicable terms of the existing Loans and Commitments hereunder or are held by reasonably satisfactory to the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided Administrative Agent (it being understood and agreed that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion more restrictive terms are added for the benefit of any Incremental Term Loan Commitments and related Incremental Term Loans, no consent shall be required from the Administrative Agent or any Lender to the extent that such terms are also added for the benefit of the amount prepaid to such Lender will be subsequently borrowed from such Lender existing Loans and Commitments (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amountextent applicable)), and (y) effective upon any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have identical terms (including pricing and termination date; provided that upfront fees for any Incremental Revolving Commitments will be permitted and shall be determined by the Borrower and the Lenders providing such increaseIncremental Revolving Commitments) to the Revolving Commitments and be treated as the same Class as the Revolving Commitments and the Borrower shall, after the establishment of any Incremental Revolving Commitments pursuant to this Section, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such increase (provided that such repayment and incurrence may, with the Administrative Agent’s consent, be effectuated through assignments among Lenders with Revolving Commitments, which shall not require an Assignment and Acceptance and may be effectuated by the Administrative Agent through changes in the Register and fundings from such Lenders providing Incremental Commitments); provided, further, that Interest Periods applicable to Incremental Term Loans or Revolving Loans advanced pursuant to Incremental Revolving Commitments may, at the election of the Administrative Agent and the Borrower, be made with Interest Period(s) identical to the then remaining Interest Period(s) applicable to any existing Term Loans of the relevant Class or existing Revolving Loans of the applicable Class (and allocated to such Interest Period(s) on a proportional basis);
(v) subject, in the case of an Incremental Term Loan (and related Incremental Term Loan Commitments) used to finance a Limited Condition Acquisition, to Section 1.5, the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Test Period, calculated as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance (including giving effect to any Acquisitions on a Pro Forma Basis that are contemplated to be funded with such Incremental Term Loans or Incremental Revolving Commitments); and
(vi) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis.
(b) The Borrower shall provide at least ten (10) days’ (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or provide Incremental Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or the principal amount of the participations held Incremental Term Loan Commitment such Lender is willing to provide, as applicable. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment, and any decision by each a Lender to increase its Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing Commitment and/or provide an Incremental Term Loan Commitment shall be included made in its sole discretion independently from any determination other Lender. Only the consent of each Increasing Lender shall be required for Incremental Commitments pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment may be replaced with respect to its existing Revolving Commitment, its existing Term Loan Commitment (if any) and/or its existing Term Loans (if any), as applicable, as a result thereof without such Lender’s consent. The Borrower may accept some or all of the Required offered amounts from existing Lenders and or designate new lenders that are acceptable to the Administrative Agent (any such Lenders will not constitute a separate voting class consent to be required only to the extent required under Section 10.4(b) for an assignment of Loans or Commitments of such Type to such new lender), the Borrower and, in the case of any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all Revolving Commitments, each Issuing Bank (such approvals of the benefits afforded byAdministrative Agent, this Agreement the Borrower and the other Loan DocumentsIssuing Banks not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), and shall, without limiting which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower shall have discretion to adjust the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the then-existing Lenders and the Additional Lenders (as it may be subordinated elect). The sum of the increase in right the principal amount of payment, the Liens securing such Revolving Commitments and the aggregate principal amount of the Incremental Term Loans may Loan Commitments of the Increasing Lenders plus the principal amount of the Revolving Commitments and the aggregate principal amount of the Term Loan Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any increase requested by the Borrower shall be subordinated or such effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder (each, an “Incremental Term Loans may be unsecuredCommitment Joinder”), in each case, form and substance reasonably acceptable to the extent set forth in an amendment to this Agreement as mutually agreed Administrative Agent, executed by the Administrative Agent, by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Revolving Commitments and/or Incremental Term Loan Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent and may reasonably request;
(iii) a certificate of the Additional Lenders or such other LendersBorrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied; provided that, in the case who of an Incremental Term Loan (and related Incremental Term Loan Commitments) used to finance a Limited Condition Acquisition, the conditions set forth in subsection (a) of this Section that are providing tested as of the applicable LCA Test Date shall be certified in the applicable LCA Election Certificate instead of the certificate delivered pursuant to this subsection (iii);
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Commitments and/or the Incremental Term Loans, as applicable, and Schedule I shall automatically be deemed amended accordingly.
(d) If any Incremental Term Loan CommitmentCommitments are to be established pursuant to this Section, other than as set forth herein, all terms with respect thereto shall be as set forth in the applicable Incremental Commitment Joinder, the execution and delivery of which agreement shall be a condition to the effectiveness of the establishment of the Incremental Term Loan Commitments. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase in Commitments and/or establishment of a new Incremental Term Loan Commitment pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding sentence or the foregoing clause (a)(iv) of this Section, amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) This Section 2.23 shall supersede any provisions in Section 2.21 or 10.2 to the contrary.
Appears in 1 contract
Increase of Commitments; Additional Lenders. a. From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders (aeach as defined below) The may enter into an agreement to increase the aggregate Term Loan Commitments hereunder (such increase, an “Incremental Commitment”) so long as the following conditions are satisfied as of the funding date of such Incremental Commitment (the “Incremental Effective Date”):
i. the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $12,500,000;
ii. the Borrower may, upon at least 10 days’ written notice (or shall execute and deliver such shorter period documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amountiii. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b)and, (h)since December 31, (i) or (j)) 2018, there shall have occurred and been no change which has had or could reasonably be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition expected to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; anda Material Adverse Effect;
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties iv. any incremental Term Loans made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 (the “Incremental Term Loans”) shall have a Weighted Average Life to Maturity no shorter than that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month Term Loans made pursuant to (and as defined in) the Existing Credit Agreement and continued on the Closing Date as set forth in Section 2.1;
v. the Borrower and Holdings shall be in pro forma compliance with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end each of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified financial covenants set forth in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such thatVI, after giving effect to any such adjustmentsproposed increase, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination as of the Required Lenders and such Lenders will not constitute a separate voting class most recently ended Fiscal Month (or Fiscal Quarter, as applicable) for any purposes under this Agreement. Any Incremental Term Loans shall be entitled which financial statements are required to have been delivered, calculated as if all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right had been made as of payment, the Liens securing first day of the relevant period for testing compliance;
vi. if the Initial Yield applicable to any such Incremental Term Loans may be subordinated or exceeds by more than 0.50% per annum the sum of the Applicable Margin then in effect for Eurodollar Loans plus one fourth of the Up- Front Fees paid in respect of the existing Term Loans (the “Existing Yield”), then the Applicable Margin of the existing Term Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum;
vii. any collateral securing any such Incremental Term Loans may Commitments shall also secure all other Obligations on a pari passu basis; and
viii. all other terms and conditions with respect to any such Incremental Commitments shall be unsecured, in each case, reasonably satisfactory to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan CommitmentAgent.
Appears in 1 contract
Sources: Term Loan Agreement (Root, Inc.)
Increase of Commitments; Additional Lenders. (a) The Borrower mayBorrowers may increase, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to request of the Administrative Agent (who shall promptly provide a copy Borrower Agent, the then effective amount of such notice to each the Aggregate Revolving Loan Lender), propose to Credit Commitment; provided that: (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Credit Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.16, shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitmentnot exceed One Hundred Million Dollars ($100,000,000); provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions Borrowers shall execute and amortization schedule applicable to deliver such Incremental Term Loans shall be determined by the Borrower documents and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, instruments and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into take such amendments to this Agreement other actions as may be necessary or appropriate (reasonably required by the Agent in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, connection with such increases and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in increase; (iii) subject to customary “Sungard” provisions, if and to the aggregate amount of extent agreed to by the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofIncreasing Lenders, (A) no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to such increase, and (B) all representations and warranties by or on behalf of each Loan Party and its Subsidiaries set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the date of such dateincrease or, except for to the extent such representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) on and as of such earlier date; and (iv) the Incremental Revolving Credit Commitments provided thatunder this Section 2.16 (the “Incremental Revolving Credit Commitments”) shall have an expiration date no earlier than the Termination Date.
(b) The Agent shall invite each Lender to increase the principal amount of its Revolving Credit Commitment, solely with respect to the establishment of Incremental Term Loan Commitments entered into on a pro rata basis, in connection with the financing proposed Incremental Revolving Credit Commitments at the interest margin proposed by the Borrowers, and if sufficient Lenders do not agree to increase their Revolving Credit Commitments in connection with such proposed Incremental Revolving Credit Commitments, then the Agent or the Borrowers may invite any prospective lender who is reasonably satisfactory to the Agent to become a Lender (each such new lender being an “Additional Lender”) in accordance with this Section 2.16. No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Credit Commitment. Only the consent of the Lender agreeing to increase their Revolving Credit Commitments (the “Increasing Lenders”) shall be required for an increase in the aggregate principal amount of the Revolving Credit Commitments pursuant to this Section 2.16. No Lender which declines to increase the principal amount of its Revolving Credit Commitments may be replaced in respect to its existing Revolving Credit Commitments, as applicable, as a Limited Condition Acquisitionresult thereof without such Lender’s consent.
(c) Subject to subsections (a) and (b) of this Section 2.16, any increase requested by the Borrowers shall be effective upon delivery to the Agent of each of the following documents (the date of such effectiveness, the Lenders providing such Incremental Term Loan Commitments may agree “Increase Date”): (i) an originally executed copy of any instrument of joinder signed by a duly authorized officer of each Additional Lender, in form and substance reasonably acceptable to a “funds certain provision” that:
the Agent; (ii) does not impose as a condition notice to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred the Increasing Lenders and be continuing at the time such Limited Condition Acquisition is consummatedAdditional Lenders, in which event form and substance reasonably acceptable to the condition to funding thereof shall instead be that (x) no Default or Event Agent, signed by a Responsible Officer of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummatedBorrower Agent; and
(iii) provides a certificate of the Borrower Agent signed by a Responsible Officer, in form and substance acceptable to the Agent, certifying that each of the conditions in subsection (a) of this Section 2.16 has been satisfied: and (iv) any other certificates or documents that the only representations Agent shall request, each in form and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect substance satisfactory to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties)Agent.
(fd) Upon Anything to the acceptance of any such agreement contrary contained herein notwithstanding, if the All-In Yield that is to be applicable to the Revolving Credit Loans to be made pursuant to the Incremental Revolving Credit Commitments is higher than the All-In Yield applicable to the Revolving Credit Loans hereunder immediately prior to the Increase Date (the amount by which the Administrative AgentAll-In Yield is higher, the Aggregate “Excess”), then the interest margin applicable to the Revolving Commitment Amount Credit Loans immediately prior to the Increase Date shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
Excess minus 0.50 percentage points (g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that the result is positive), subject to the occurrence of and effective upon the Increase Date, and without the necessity of any portion action by any party hereto.
(e) Each of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Lenders having a Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable Credit Commitment prior to the Administrative Agent, so that, after giving effect thereto, Increase Date (the Loans of such Lenders are held ratably by “Pre-Increase Revolving Credit Lenders”) shall assign to any Lender which is acquiring a new or additional Revolving Credit Commitment on the Lenders of such Class in accordance with Increase Date (the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount“Post-Increase Revolving Credit Lenders”), and (y) effective upon such increasePost-Increase Revolving Credit Lenders shall purchase from each Pre-Increase Revolving Credit Lender, at the principal amount of thereof, such interests in the participations held by each Revolving Loan Lender Credit Loans and participation interests in each Letter Swingline Loans and undrawn Letters of Credit then outstanding on such Increase Date as shall be adjusted automatically such necessary in order that, after giving effect to all such adjustmentsassignments and purchases, the Lenders shall hold participations such Revolving Credit Loans and participation interests in each such Letter Swingline Loans and Letters of Credit will be held by Pre-Increase Revolving Credit Lenders and Post-Increase Revolving Credit Lenders ratably in proportion accordance with their Pro Rata Shares after giving effect to their respective such increased Revolving Credit Commitments.
(hf) The Additional Lenders or existing Lenders providing an Incremental Term Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Document to Revolving Credit Loans shall be entitled to all deemed, unless the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each casecontext otherwise requires, to include Revolving Credit Loans made pursuant to the extent set forth in an amendment Incremental Revolving Credit Commitments pursuant to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan CommitmentSection 2.16.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date and subject solely to the conditions set forth in this Section 2.23, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments (each such increase, an “Incremental Revolving Commitment”), increase the aggregate Delayed Draw Term Loan Commitments and/or add one or more delayed draw term loan facilities (each such increase or additional facility, an “Incremental Delayed Draw Term Loan”), and/or increase the aggregate Term Loan A Commitments and/or add one or more term loan facilities (each such increase or additional facility, an “Incremental Term Loan”; the Incremental Revolving Commitment together with the commitment for each Incremental Term Loan and Incremental Delayed Draw Term Loan are herein referred to as an “Incremental Commitment” and the principal amount of each Incremental Commitment is referred to herein as the “Incremental Commitment Amount”), so long as the following conditions are satisfied:
(i) the aggregate principal amount of all Incremental Commitments established pursuant to this Section (other than the First Amendment Incremental Term Loan, the First Amendment Incremental Revolving Commitment and the First Amendment DDTL Commitment, which shall not be subject to this Section 2.23(a)(i)) shall not exceed an amount equal to the sum of (A) $40,000,000 and (B) the maximum amount that would result in a Total Net Leverage Ratio, on a pro forma basis (treating the amount of any Incremental Revolving Commitments extended on such date, Delayed Draw Term Loan Commitments and any Incremental Delayed Draw Term Loans as fully funded, but excluding the cash proceeds of any Incremental Commitment Amounts or Incremental Equivalent Debt from cash and Permitted Investments) (and on a Pro Forma Basis if such Incremental Commitment is to be used to fund an Acquisition), of not more than 4.00:1.00 as of the most recently ended Fiscal Quarter for which financial statements shall have been delivered (or, if the Borrower shall have provided the Administrative Agent with monthly financial statements for the Borrower and its Restricted Subsidiaries in form and substance reasonably satisfactory to the Administrative Agent, as of the most recently ended twelve month period); provided that, in any event, the aggregate amount of Incremental Revolving Commitments shall not exceed $25,000,000; provided, further, that the aggregate principal amount of Incremental Equivalent Debt established after the Closing Date in reliance on clause (i)(A) above shall result in a dollar for dollar reduction in the amount of Incremental Commitments permitted to be established pursuant to clause (i)(A) of this Section. Unless the Borrower elects otherwise, each Incremental Commitment will be deemed incurred first under clause (i)(B) above to the extent permitted, with the balance incurred under clause (i)(A) above. If the Borrower incurs an Incremental Commitment under clause (i)(A) above substantially concurrently with its incurrence of an Incremental Commitment under clause (i)(B) above, then the Total Net Leverage Ratio calculated pursuant to this subsection (i) will be calculated with respect to such incurrence under clause (i)(B) above without regard to any incurrence of indebtedness under clause (i)(A) above;
(ii) before and after giving effect to any proposed Incremental Commitment (determined, in the case of any Incremental Commitment that is to be used to fund a Limited Condition Acquisition, as of the LCA Test Date (other than the determination of whether any Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) exists or would result therefrom, which shall be determined as of the date such Limited Condition Acquisition is consummated)), no Default or Event of Default will have occurred and be continuing;
(iii) the representations and warranties in the Loan Documents will be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) at the time of and on the date of the incurrence of such Incremental Commitment (except to the extent that any such representation or warranty expressly relates to an earlier date, in which case such representation or warranty shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) as of such earlier date); provided that if such Incremental Commitment is to be used to fund a Limited Condition Acquisition, the condition set forth in this clause (iii) may be satisfied with (A) the accuracy of customary “specified representations” and “acquisition agreement representations” and (B) such other limitations or exceptions to representations and warranties as may be agreed by the lenders providing such Incremental Commitment;
(iv) after giving effect to any proposed Incremental Commitment (determined, in the case of any Incremental Commitment that is to be used to fund a Limited Condition Acquisition, as of the LCA Test Date), on a pro forma basis (treating the Incremental Revolving Commitments, Delayed Draw Term Loan Commitments and any Incremental Delayed Draw Term Loans as fully funded, but excluding the cash proceeds of any Incremental Commitment Amounts or Incremental Equivalent Debt from cash and Permitted Investments), the Borrower and its Restricted Subsidiaries are in compliance with the Financial Covenant (on a Pro Forma Basis if such Incremental Commitment is to be used to fund an Acquisition), measuring clause (a) of the Total Net Leverage Ratio as of the date such Incremental Commitment is to be established (or, in the case of a Limited Condition Acquisition, as of the LCA Test Date) and otherwise re-computing such covenant as of the last day of the most recently ended Fiscal Quarter for which financial statements shall have been delivered pursuant to Section 5.1(a) or 5.1(b) (or, if the Borrower shall have provided the Administrative Agent with monthly financial statements for the Borrower and its Restricted Subsidiaries, re-computing such covenants as of the last day of the most recently ended twelve month period) as if such Incremental Commitment was established on the first day of the relevant period for testing compliance;
(v) all Incremental Delayed Draw Term Loans and Incremental Term Loans established pursuant to this Section as increases to the aggregate Delayed Draw Term Loan Commitments and Term Loan A Commitments, respectively, shall be on the exact same terms (other than original issue discount and upfront fees and subject to clause (ix) below) and pursuant to the same documentation (other than the amendment evidencing such Incremental Delayed Draw Term Loans or Incremental Term Loans) applicable to the Delayed Draw Term Loan and the Term Loan A, respectively;
(vi) subject to clause (d) of this Section, all Incremental Delayed Draw Term Loans and Incremental Term Loans established as a new tranche of delayed draw term loans or term loans shall be on terms and pursuant to documentation to be determined; provided that:
(A) to the extent such terms and documentation are not consistent with the Delayed Draw Term Loan or the Term Loan A, as applicable, except to the extent permitted by clause (ix) below, they shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to periods after the Latest Maturity Date);
(B) if such Indebtedness contains any financial maintenance covenants, such covenants shall not be tighter than (or in addition to) those contained in this Agreement for any period ending on or prior to the Latest Maturity Date;
(C) the final maturity date for any such Incremental Delayed Draw Term Loan or Incremental Term Loan shall be no earlier than the Latest Maturity Date for the Delayed Draw Term Loan and the Term Loan A, respectively; and
(D) the Weighted Average Life to Maturity for any such Incremental Delayed Draw Term Loan or Incremental Term Loan shall be no shorter than the remaining Weighted Average Life to Maturity of the Delayed Draw Term Loan and the Term Loan A, respectively;
(vii) any Incremental Revolving Commitments provided pursuant to this Section shall be on terms (including pricing and maturity but excluding upfront fees) and pursuant to documentation applicable to the Revolving Commitments outstanding immediately prior to such incurrence;
(viii) (A) obligations in respect of any Incremental Commitments (1) shall constitute Obligations, (2) shall have the same guarantees as the Obligations and (3) shall rank pari passu in right of payment and security with the other Loans and (B) and all collateral securing any such Incremental Commitments shall also secure all other Obligations; and
(ix) with respect to any Incremental Delayed Draw Term Loans and Incremental Term Loans that constitute MFN Eligible Debt, the MFN Adjustment will apply to such Incremental Delayed Draw Term Loans and Incremental Term Loans.
(b) The Borrower may, upon shall provide at least 10 daysBusiness Days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to those Lenders (ithe “Increasing Lenders”) increase either that agree to provide any Incremental Commitment, which fees may be variable based upon the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (amount any such incremental term loan commitment, an “Incremental Term Loan Commitment”) Lender is willing to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan provide. Each Increasing Lender shall have the right for a period of as soon as practicable, and in any case within 5 Business Days following receipt of such notice, to elect by specify in a written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional such proposed Incremental Commitment Amount in the case of a request that it is willing to increase the Aggregate Revolving Commitments.
(d) provide. No Lender (or any successor thereto) shall have any obligation obligation, express or implied, to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an any portion of any requested Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an any portion of any such Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required to establish an Incremental Commitment pursuant to this Section. No Lender that declines to provide any requested Incremental Commitment may be replaced with respect to any of its existing Commitments or Loans as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will provide any Incremental Commitment within 5 Business Days after receipt of such notice, such Lender shall be deemed to have declined to do so. The Borrower may accept some or all of the amounts offered by existing Lenders or may designate new lenders (subject to the restrictions set forth in Section 10.4, as if such Loans were being acquired via assignment) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment and, in the case of any proposed Incremental Revolving Commitments or Incremental Delayed Draw Term Loans, such Additional Lenders shall be acceptable to the Administrative Agent (such approval not to be unreasonably withheld). The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of any Incremental Commitments among the Increasing Lenders and the Additional Lenders. The sum of the portion of any proposed Incremental Commitment that is to be provided by Increasing Lenders plus the portion of such Incremental Commitment that is to be provided by Additional Lenders shall not, in the aggregate, exceed the proposed Incremental Commitment Amount.
(ec) An increase in Subject to subsections (a) and (b) of this Section, any Incremental Commitment requested by the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 Borrower shall become be effective upon the receipt by delivery to the Administrative Agent of a supplement each of the following documents:
(i) an executed copy of an instrument of joinder or joinder amendment, in form and substance reasonably satisfactory acceptable to the Administrative Agent Agent, executed by the Borrower and by Borrower, each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increasedIncreasing Lender, setting forth the new Revolving Commitments or the such Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) to the extent reasonably required by the Administrative Agent after consultation with the Borrower, legal opinions and authorizing resolutions, in each case, with respect to such Incremental Commitment and consistent with those delivered on the Closing Date, other than changes to such legal opinions resulting from a change in law or change in fact;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied; and,
(iv) to the extent requested by such any Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increasedany Increasing Lender, Revolving Notes evidencing such increase in the Revolving Commitment or executed promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined issued by the Borrower and in accordance with Section 2.10. Upon the Lenders holding the effectiveness of any such Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contraryCommitment, the Administrative Agent, the Borrower, the Guarantors Commitments and the Additional Lenders or existing Lenders participating in the Additional Commitment AmountPro Rata Share of each Lender will be adjusted, as applicable, may enter into to give effect to such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this AgreementIncremental Commitment, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional LendersSchedule I shall automatically be deemed amended accordingly.
(id) Notwithstanding anything If any Incremental Delayed Draw Term Loans or Incremental Term Loans are to have terms that are different from the contrary Delayed Draw Term Loans and Term Loan A, respectively, outstanding immediately prior to such incurrence (any such Delayed Draw Term Loans or Incremental Term Loans, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in Section 3.2, an increase in a separate assumption agreement among the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition AcquisitionBorrower, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a)Loans and the Administrative Agent, (b), (h), (i) or (j)) shall have occurred the execution and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making delivery of which agreement shall be a condition to funding thereof the effectiveness of the Non-Conforming Credit Extensions; provided that, for the avoidance of doubt, all Non-Conforming Credit Extensions shall be (x) certain “specified representations” agreed subject to by Section 2.23(a). The scheduled principal payments on the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties Term Loan A to be true and correct or made pursuant to satisfy Sections 2.9(b) shall be ratably increased after the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance incurrence of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to constituting an increase the addition of such Incremental aggregate Term Loan Commitments or Revolving A Commitments.
. After the incurrence of any Non-Conforming Credit Extensions, all optional and mandatory prepayments of Term Loans shall be allocated ratably between the then-outstanding Term Loans and such Non-Conforming Credit Extensions (g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Daysor, in the case of any Base Rate Loans then outstandingsuch Non-Conforming Credit Extensions, and at a less than ratable basis to the end of the then current month with respect thereto, extent agreed to in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at applicable assumption agreement). If the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstandingBorrower incurs Incremental Revolving Commitments under this Section, the Borrower shall, after such time, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such incurrence and no amounts shall prepay such Loans be payable by the Borrower pursuant to Section 2.19 in their entirety and, connection therewith. Notwithstanding anything to the extent the Borrower elects to do so and subject to the conditions specified contrary in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the BorrowerSection 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Incremental Revolving Commitments and the Additional Lenders or Revolving Commitments outstanding immediately prior to any such other Lenders, in each case who are providing such Incremental Term Loan Commitmentincurrence).
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Repay Holdings Corp)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower may, upon at least 10 days’ written notice and one or more Increasing Lenders or Additional Lenders (or such shorter period each as defined below) may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose enter into an agreement to (i) increase either the Aggregate aggregate principal amount of the Revolving Commitments or and/or (ii) establish one or more incremental term loan commitments tranches of Incremental Term Loan Commitments hereunder (any each such incremental term loan commitmentincrease or additional tranche, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan” and the principal amount thereof, an the “Incremental Term LoanCommitment Amount”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio following conditions are satisfied:
(determined i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $35,000,000;
(1ii) after giving effect to the Borrower shall execute and deliver such acquisition documents and assuming that instruments and take such acquisition was consummated on other actions as may be reasonably required by the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) Administrative Agent in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees tosubject, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment (and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the related Incremental Term Loan Commitments) used to finance a Limited Condition Acquisition, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to1.5, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofCommitment, (x) no Default or Event of Default shall exist; provided that (A) in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition not prohibited by this Agreement, the Lenders providing such Incremental Commitment and the Administrative Agent may agree that such condition shall be limited to an absence of an Event of Default under Section 8.1(a), (b), (g), (h) or (i) and (B) if the Borrower makes an LCA Election pursuant to Section 1.5 and such condition is tested as of the applicable LCA Test Date, it shall also be a condition that no Event of Default under Section 8.1(a), (b), (g), (h) or (i) shall have occurred and be continuing or would result from the incurrence of such Incremental Term Loan (and related Term Loan Commitments) and the transactions consummated in connection therewith (including the incurrence of any Indebtedness and the use proceeds thereof) on the date on which such Incremental Term Loan (and related Incremental Term Loan Commitments) is incurred and the applicable Limited Condition Acquisition is consummated, and (y) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on as of the date of the establishment of such dateIncremental Commitment (or, except for representations and warranties that expressly relate if such representation or warranty relates to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date); provided that, solely with respect to that in the establishment case of any Incremental Term Loan Commitments entered into in connection with Commitment obtained for the purposes of financing of a Limited Condition Acquisitionan Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Term Loan Commitments Commitment may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making accuracy of which shall be a condition to funding thereof such Incremental Commitment (and the Incremental Term Loans or Revolving Loans provided thereunder) shall be (xI) certain “specified representations” agreed to by the Lenders providing such Commitments Specified Representations and (yII) the representations and warranties made by or with respect to on behalf of the applicable target in the Limited Condition purchase, acquisition or similar agreement governing such Acquisition Agreement that or other Investment as are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted the Borrower’s applicable Affiliates or Subsidiaries) has the right (determined without regard to any notice requirement) not to consummate or the right to terminate (or cause the termination of) the Borrower’s (or such Restricted Subsidiary’sAffiliates’ or Subsidiaries’) obligations under such Limited Condition Acquisition Agreement purchase, acquisition or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement other agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement purchase, acquisition or other agreement (or the failure of such representations or warranties to be true and correct accurate or to satisfy the closing conditions in such Limited Condition Acquisition Agreement purchase, acquisition or other agreement applicable to such representations or warranties) (such representations and warranties, the “Specified Target Representations”).;
(fiv) Upon the acceptance of (x) any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments incremental term loans made pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders(the “Incremental Term Loans” and, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month commitments with respect thereto, the “Incremental Term Loan Commitments”) shall have a maturity date no earlier than the latest Maturity Date in effect at the case time such Incremental Term Loans are incurred, shall have a Weighted Average Life to Maturity no shorter than that of any Index Rate then-outstanding Term Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after (without giving effect to previous reductions in and previously made amortization payments on such increaseTerm Loans) and shall otherwise have terms (other than pricing and any representations, until warranties, covenants and other provisions applicable only to periods after the latest Maturity Date hereunder at such time as all outstanding Revolving time) that either are consistent with the applicable terms of the existing Loans and Commitments hereunder or are held by reasonably satisfactory to the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided Administrative Agent (it being understood and agreed that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion more restrictive terms are added for the benefit of any Incremental Term Loan Commitments and related Incremental Term Loans, no consent shall be required from the Administrative Agent or any Lender to the extent that such terms are also added for the benefit of the amount prepaid to such Lender will be subsequently borrowed from such Lender existing Loans and Commitments (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amountextent applicable)), and (y) effective upon any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have identical terms (including pricing and termination date; provided that upfront fees for any Incremental Revolving Commitments will be permitted and shall be determined by the Borrower and the Lenders providing such increaseIncremental Revolving Commitments) to the Revolving Commitments and be treated as the same Class as the Revolving Commitments and the Borrower shall, after the establishment of any Incremental Revolving Commitments pursuant to this Section, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such increase (provided that such repayment and incurrence may, with the Administrative Agent’s consent, be effectuated through assignments among Lenders with Revolving Commitments, which shall not require an Assignment and Acceptance and may be effectuated by the Administrative Agent through changes in the Register and fundings from such Lenders providing Incremental Commitments); provided, further, that Interest Periods applicable to Incremental Term Loans or Revolving Loans advanced pursuant to Incremental Revolving Commitments may, at the election of the Administrative Agent and the Borrower, be made with Interest Period(s) identical to the then remaining Interest Period(s) applicable to any existing Term Loans of the relevant Class or existing Revolving Loans of the applicable Class (and allocated to such Interest Period(s) on a proportional basis);
(v) subject, in the case of an Incremental Term Loan (and related Incremental Term Loan Commitments) used to finance a Limited Condition Acquisition, to Section 1.5, the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Test Period, calculated as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance (including giving effect to any Acquisitions on a Pro Forma Basis that are contemplated to be funded with such Incremental Term Loans or Incremental Revolving Commitments); and
(vi) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis.
(b) The Borrower shall provide at least ten (10) days’ (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or provide Incremental Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or the principal amount of the participations held Incremental Term Loan Commitment such Lender is willing to provide, as applicable. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment, and any decision by each a Lender to increase its Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing Commitment and/or provide an Incremental Term Loan Commitment shall be included made in its sole discretion independently from any determination other Lender. Only the consent of each Increasing Lender shall be required for Incremental Commitments pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment may be replaced with respect to its existing Revolving Commitment, its existing Term Loan Commitment (if any) and/or its existing Term Loans (if any), as applicable, as a result thereof without such Lender’s consent. The Borrower may accept some or all of the Required offered amounts from existing Lenders and or designate new lenders that are acceptable to the Administrative Agent (any such Lenders will not constitute a separate voting class consent to be required only to the extent required under Section 10.4(b) for an assignment of Loans or Commitments of such Type to such new lender), the Borrower and, in the case of any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all Revolving Commitments, each Issuing Bank (such approvals of the benefits afforded byAdministrative Agent, this Agreement the Borrower and the other Loan DocumentsIssuing Banks not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), and shall, without limiting which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower shall have discretion to adjust the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the then-existing Lenders and the Additional Lenders (as it may be subordinated elect). The sum of the increase in right the principal amount of payment, the Liens securing such Revolving Commitments and the aggregate principal amount of the Incremental Term Loans may Loan Commitments of the Increasing Lenders plus the principal amount of the Revolving Commitments and the aggregate principal amount of the Term Loan Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any increase requested by the Borrower shall be subordinated or such effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder (each, an “Incremental Term Loans may be unsecuredCommitment Joinder”), in each case, form and substance reasonably acceptable to the extent set forth in an amendment to this Agreement as mutually agreed Administrative Agent, executed by the Administrative Agent, by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Revolving Commitments and/or Incremental Term Loan Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent and may reasonably request;
(iii) a certificate of the Additional Lenders or such other LendersBorrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied; provided that, in the case who of an Incremental Term Loan (and related Incremental Term Loan Commitments) used to finance a Limited Condition Acquisition, the conditions set forth in subsection (a) of this Section that are providing tested as of the applicable LCA Test Date shall be certified in the applicable LCA Election Certificate instead of the certificate delivered pursuant to this subsection (iii);
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Commitments and/or the Incremental Term Loans, as applicable, and Schedule I shall automatically be deemed amended accordingly.
(d) If any Incremental Term Loan CommitmentCommitments are to be established pursuant to this Section, other than as set forth herein, all terms with respect thereto shall be as set forth in the applicable Incremental Commitment Joinder, the execution and delivery of which agreement shall be a condition to the effectiveness of the establishment of the Incremental Term Loan Commitments. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase in Commitments and/or establishment of a new Incremental Term Loan Commitment pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding sentence or the foregoing clause (a)(iv) of this Section, amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) This Section 2.23 shall supersede any provisions in Section 2.21 or 10.2 to the contrary.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The Borrower maySo long as no Event of Default has occurred and is continuing, from time to time after the Funding Date and upon at least 10 20 days’ written notice to the Administrative Agent (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lenderand Company may agree), propose the Company may elect to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) Credit Commitment Amount up to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate a total amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred 2,000,000,000 at any time in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”)effect.
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower The Company may designate another bank one or more banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) which at the time agrees agree to, (i) in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and (ii) in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution that is not an existing Lender must be acceptable to the Administrative Agent, the Swingline Lenders and/or the Issuing Banks (in each case, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum ) if the consent of the increases in Administrative Agent, the Revolving Commitments of Swingline Lenders or the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in Issuing Banks, as the case of a request may be, would be required to increase the Aggregate Revolving Commitments.
(d) effect an assignment to such Person under Section 10.10(b). No Lender (or any successor thereto) shall have any obligation whatsoever to agree to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.14 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Commitment Increase Agreement signed by the Borrower and Company, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and together with such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors Company with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors Company with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement Commitment Increase Agreement by the Administrative Agent, the Aggregate Revolving Credit Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II 1A shall be automatically be deemed amended updated to reflect the Incremental Term Loan Commitments or Revolving Commitments Commitment amounts of all Lenders each Lender immediately after giving effect to the addition of such Incremental Term Loan Commitments or Revolving CommitmentsCommitment Increase Agreement.
(ge) Upon On the effective date of any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.14 that is not pro rata among all Revolving Loan Lenders, (xi) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstandingBorrowers, the Borrower Administrative Agent and the Lenders shall prepay such Loans in their entirety and, make adjustments to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the outstanding principal amount of Revolving Loans from (but not any interest accrued thereon or any accrued fees prior to such date), including the repayment of Revolving Loan Loans plus all applicable accrued interest, fees and expenses as shall be necessary to provide for Revolving Loans by the Lenders in proportion to their respective Revolving Commitments Percentages immediately after giving effect to such increase, until such time as all together with any breakage fees and funding losses that are required to be paid pursuant to Section 2.11, and each Lender shall be deemed to have automatically made an assignment of its outstanding Revolving Loans, and assumed outstanding Revolving Loans are held by of other Lenders as may be necessary to effect the Revolving Loan Lenders foregoing (notwithstanding the requirements set forth in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment AmountSection 10.10), and (yii) effective upon such increase, the amount of the unfunded participations held by each Revolving Loan Lender in each Letter of Credit and Swingline Loan then outstanding shall be adjusted automatically such that, immediately after giving effect to such adjustments, the Lenders shall hold unfunded participations in each such Letter of Credit and Swingline Loan in the proportion of its respective Percentage immediately after giving effect to their respective Revolving Commitmentssuch increase.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 10 30 days’ ' written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan . Each Lender shall have the right for a period of 5 Business Days 10 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “"Additional Lender”"), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the previously unsubscribed amount of the Additional Commitment Amount in the case of a request pursuant to increase the Aggregate Revolving Commitmentssubsection (a).
(dc) No In addition to subsections (a) and (b) above, so long as no Event of Default has occurred and is continuing, the Borrower may, upon at least 30 days' prior written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) and the administrative agent under the Credit Services Credit Agreement, elect to have (i) all Lenders that are also parties to the Credit Services Credit Agreement increase their Revolving Commitments under this Agreement, and (ii) any other lenders party to the Credit Services Credit Agreement that are not Lenders join this Agreement as a Lender and provide a new Revolving Commitment hereunder, in each case simultaneously with the termination by the Borrower of the Credit Services Revolving Commitments and the repayment in full of all "Obligations" (or any successor theretoas defined in the Credit Services Credit Agreement). Each Lender under this Agreement (i) shall have any obligation agrees to increase its Revolving Commitment or hereunder by the amount, if any, of its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Credit Services Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect consents to the addition of such Incremental Term Loan new Lenders hereunder that previously provided Credit Services Revolving Commitments or but not Revolving Commitments.
, in each case, subject to the termination of the Credit Services Revolving Commitments and repayment in full of all "Obligations" (g) Upon any increase as defined in the aggregate amount Credit Services Credit Agreement). Each Person that is not a Lender prior to converting its Credit Services Revolving Commitment to a Revolving Commitment shall be deemed to be an Additional Lender for purposes of this Section 2.24. The sum of the increases in the Revolving Commitments pursuant to this Section 2.24 that is subsection (c) shall not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at aggregate exceed the end of the then current month with respect thereto, Credit Services Revolving Commitments in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, effect immediately prior to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitmentstermination thereof.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Sources: Revolving Credit Agreement (Haverty Furniture Companies Inc)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the Aggregate Revolving Commitments and/or provide incremental Term Loans hereunder (each such increase, upon at least 10 days’ written notice an "Incremental Commitment") so long as the following conditions are satisfied:
(or i) the aggregate principal amount of all such shorter period Incremental Commitments made pursuant to this Section shall not exceed $100,000,000 (the principal amount of each such Incremental Commitment, the "Incremental Commitment Amount");
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing exist and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than (i) those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects, (ii) on such date, except for representations and warranties that expressly relate to an earlier effective as of a specified date, which shall be remain true and correct as of such specified date, and (iii) changes in facts and circumstances that are not prohibited by the terms of this Agreement);
(iv) (x) any incremental Term Loans made pursuant to this Section (the "Incremental Term Loans") shall have a maturity date no earlier than the Maturity Date and shall have a Weighted Average Life to Maturity no shorter than that of the Term Loans made pursuant to Section 2.5, and (y) any incremental Revolving Commitments provided pursuant to this Section (the "Incremental Revolving Commitments") shall have a termination date no earlier than the Revolving Commitment Termination Date;
(v) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all material respects such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance;
(vi) if the Initial Yield applicable to any such Incremental Term Loans exceeds by more than 0.50% per annum the sum of the Applicable Margin then in effect for Eurodollar Term Loans or in all respectsEurodollar Revolving Loans, as applicable, plus one fourth of the Up-Front Fees paid in respect of the existing Term Loans or the existing Revolving Commitments, as applicable (the "Existing Yield"), then the Applicable Margin of the existing Term Loans or the existing Revolving Loans, as applicable, shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum;
(vii) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis; and
(viii) except with respect to amortization, pricing and final maturity as set forth above in this clause (a), any Incremental Term Loan shall be on terms consistent with the Term Loans; and any Incremental Revolving Commitments shall be on terms (including all-in pricing and maturity date) consistent with the Revolving Commitments.
(b) The Borrower shall provide at least 30 days' written notice to the Administrative Agent (who shall promptly provide a copy of such earlier date; provided thatnotice to each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, solely but is not required to, specify any fees offered to those Lenders (the "Increasing Lenders") that agree to provide Incremental Commitments, which fees may be variable based upon the amount of any such Lender's Incremental Commitment. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or to provide any additional Term Loan, and any decision by a Lender to increase its Revolving Commitment and/or provide any additional Term Loan shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments and/or to provide any additional Term Loan, as applicable, pursuant to this Section, and then only with respect to the establishment increased Commitment(s) of such Lender. No Lender that declines to provide an Incremental Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicable, as a result thereof without such Lender's consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will provide an Incremental Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to provide an Incremental Commitment. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the "Additional Lenders"), which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments and/or such Incremental Term Loan Loans among the Increasing Lenders and the Additional Lenders. The sum of the aggregate Incremental Commitments entered into of the Increasing Lenders and the Additional Lenders provided after the Closing Date shall not in connection the aggregate exceed the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the financing Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Limited Condition AcquisitionResponsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent.
(d) Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments and/or the Incremental Term Loans, as applicable, and Schedule I shall automatically be deemed amended accordingly.
(e) If any Incremental Term Loans are to have terms that are different from the Term Loans or the Revolving Commitments, as applicable, outstanding immediately prior to such incurrence (any such Incremental Term Loans, the "Non-Conforming Credit Extensions"), all such terms shall be as set forth in a separate assumption agreement among the Borrower, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a)Loans and the Administrative Agent, (b), (h), (i) or (j)) shall have occurred the execution and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making delivery of which agreement shall be a condition to funding thereof the effectiveness of the Non-Conforming Credit Extensions. The scheduled principal payments on the Term Loans to be made pursuant to Section 2.11 shall be ratably increased after the making of any Incremental Term Loans (xother than Term Loans that are Non-Conforming Credit Extensions) certain “specified representations” agreed to under this Section by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the aggregate principal amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Loans. After the incurrence of any Non-Conforming Credit Extensions that are Term Loans, all optional prepayments of Term Loans shall be allocated ratably between the then-outstanding Term Loans and such Non-Conforming Credit Extensions. If the Borrower incurs Incremental Revolving Commitments or under this Section, the Borrower shall, after such time, repay and incur Revolving Commitments.
(g) Upon any increase in Loans ratably as between the aggregate amount of Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section 2.24 that is not and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case allocations of any Eurodollar Loans and Base Rate Loans then outstanding, between Loans incurred pursuant to this Section and at Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the end Non-Conforming Credit Extensions consisting of Incremental Revolving Commitments and the then current month with respect thereto, in the case Revolving Commitments outstanding immediately prior to any such incurrence). For purposes of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstandingthis Section, the Borrower following terms shall prepay such Loans in their entirety and, to have the extent the Borrower elects to do so and subject to the conditions meanings specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.below:
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Tivity Health, Inc.)
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date and in accordance with this Section, the Borrower and one or more Increasing Lenders or Additional Lenders may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) each of the conditions set forth in Section 3.2 shall be satisfied;
(ii) no Event of Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date;
(iii) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $200,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(iv) any Incremental Commitments provided pursuant to this Section shall have a termination date no earlier than the Maturity Date;
(v) the Borrower and its Subsidiaries shall be in compliance with the Incurrence Test;
(vi) if the Initial Yield applicable to any such Incremental Commitment exceeds by more than 0.50% per annum the sum of the Applicable Margin then in effect for Eurodollar Revolving Loans plus one fourth of the Up-Front Fees paid in respect of the existing Revolving Commitments (the “Existing Yield”), then the Applicable Margin of the existing Revolving Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum; and
(vii) any Collateral securing any such Incremental Commitment shall also secure all other Obligations on a pari passu basis.
(b) The Borrower may, upon shall provide at least 10 daysten (10) Business Days’ written notice (or such shorter period as may be permitted agreed by the Administrative Agent in its sole discretionAgent) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose ) of any proposal to establish an Incremental Commitment. Each such notice shall specify the date (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitmenteach, an “Incremental Term Loan CommitmentIncrease Effective Date”) on which the Borrower proposes that the Incremental Commitment shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as agreed by the Administrative Agent) after the date on which such notice is delivered to make an incremental term loan the Administrative Agent. The Borrower may, but is not required to, specify any fees offered to those Lenders that agree to increase the principal amount of their Revolving Commitments (any such incremental term loaneach, an “Incremental Term LoanIncreasing Lender”, and collectively, the “Increasing Lenders”), which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment. No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment may be replaced with respect to its existing Revolving Commitment as a result thereof without such Lender’s consent. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent and the Issuing Banks (such approval not to exceed the sum of (xbe unreasonably withheld or delayed) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, additional Lenders hereunder in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) each, an “Additional Lender”, and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)collectively, the “Additional Commitment AmountLenders”).
(b) In the case of , which Additional Lenders may assume all or a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt portion of such notice, to elect by written notice to the Incremental Commitments. The Borrower and the Administrative Agent shall have discretion jointly to increase its Revolving adjust the allocation of such Incremental Commitment by a principal amount equal to its Pro Rata Share of among the Increasing Lenders and the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases increase in the Revolving Commitments Commitment of the existing Increasing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Incremental Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(dc) No Lender Subject to subsections (or a) and (b) of this Section, any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and requested by the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment Borrower shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by delivery to the Administrative Agent of a supplement or joinder each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably satisfactory acceptable to the Administrative Agent Agent, executed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increasedIncreasing Lender, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and ;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the such Incremental Term Loan Commitments Commitment and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the such Incremental Term Loan Commitments Commitment as the Administrative Agent may reasonably request; provided, andhowever, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans no event shall be determined by the Borrower and be required to deliver (A) any modifications to Mortgages (unless such modification is required by applicable law to preserve the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders validity or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into priority of such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (Mortgage or in all respects, as applicable) as of such earlier date; provided that, solely with respect order to ensure that the establishment of Incremental Term Loan Commitments entered into in connection with Mortgages continue to fully secure the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(aObligations), (b), (h), (i) or (j)B) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default any title insurance endorsements or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date new title insurance policies or local counsel opinions with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; andIncremental Commitment;
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests certificate of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated signed by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business DaysResponsible Officer, in the case of any Base Rate Loans then outstanding, form and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner substance reasonably acceptable to the Administrative Agent, so thatcertifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, after giving effect theretoexecuted promissory notes evidencing such Lender’s Incremental Commitment, the Loans of such Lenders are held ratably issued by the Lenders of such Class Borrower in accordance with Section 2.9; and
(v) any other certificates or documents that the respective Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of such Class of such Lenders (after giving each Lender will be adjusted to give effect to such Additional the Incremental Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding Schedule II shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitmentsdeemed amended accordingly.
(hd) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination For purposes of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of paymentSection, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to following terms shall have the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.meanings specified below:
Appears in 1 contract
Sources: Credit Agreement (Landmark Infrastructure Partners LP)
Increase of Commitments; Additional Lenders. (a) The Borrower maySo long as no Event of Default has occurred and is continuing, from time to time after the Effective Date and upon at least 10 20 days’ written notice to the Administrative Agent (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lenderand Company may agree), propose the Company may elect to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) Credit Commitment Amount up to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate a total amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred 3,500,000,000 at any time in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”)effect.
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower The Company may designate another bank one or more banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) which at the time agrees agree to, (i) in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and (ii) in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution that is not an existing Lender must be acceptable to the Administrative Agent, the Swingline Lenders and/or the Issuing Banks (in each case, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum ) if the consent of the increases in Administrative Agent, the Revolving Commitments of Swingline Lenders or the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in Issuing Banks, as the case of a request may be, would be required to increase the Aggregate Revolving Commitments.
(d) effect an assignment to such Person under Section 10.10(b). No Lender (or any successor thereto) shall have any obligation whatsoever to agree to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.14 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Commitment Increase Agreement signed by the Borrower and Company, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and together with such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors Company with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors Company with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement Commitment Increase Agreement by the Administrative Agent, the Aggregate Revolving Credit Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II 1A attached hereto shall be automatically be deemed amended updated to reflect the Incremental Term Loan Commitments or Revolving Commitments Commitment amounts of all Lenders each Lender immediately after giving effect to the addition of such Incremental Term Loan Commitments or Revolving CommitmentsCommitment Increase Agreement.
(ge) Upon On the effective date of any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.14 that is not pro rata among all Revolving Loan Lenders, (xi) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstandingBorrowers, the Borrower Administrative Agent and the Lenders shall prepay such Loans in their entirety and, make adjustments to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the outstanding principal amount of Revolving Loans from (but not any interest accrued thereon or any accrued fees prior to such date), including the repayment of Revolving Loan Loans plus all applicable accrued interest, fees and expenses as shall be necessary to provide for Revolving Loans by the Lenders in proportion to their respective Revolving Commitments Percentages immediately after giving effect to such increase, until such time as all together with any breakage fees and funding losses that are required to be paid pursuant to Section 2.11, and each Lender shall be deemed to have automatically made an assignment of its outstanding Revolving Loans, and assumed outstanding Revolving Loans are held by of other Lenders as may be necessary to effect the Revolving Loan Lenders foregoing (notwithstanding the requirements set forth in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment AmountSection 11.10), and (yii) effective upon such increase, the amount of the unfunded participations held by each Revolving Loan Lender in each Letter of Credit and Swingline Loan then outstanding shall be adjusted automatically such that, immediately after giving effect to such adjustments, the Lenders shall hold unfunded participations in each such Letter of Credit and Swingline Loan in the proportion of its respective Percentage immediately after giving effect to their respective Revolving Commitmentssuch increase.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The Borrower maymay from time to time, upon at least 10 five days’ prior written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) to establish one or more incremental new term loan commitments loans (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loaneach, an “Incremental Term Loan”); provided, by that:
(a) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.8, the aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to all increases in the Aggregate Revolving Commitments or such plus the aggregate initial principal amount of all Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and Loans after the Second Amendment Effective Date shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) exceed $800,000,000 plus an unlimited amount so long as the pro forma Consolidated Net Leverage Ratio is not greater than 4.00:1.00, recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or (determined (1) b), after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and or Incremental Term Loan Commitments may, at on a Pro Forma Basis (assuming the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the full amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments is fully drawn and without “netting” the cash proceeds thereof);
(b) any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan shall increase any be in a minimum principal amount of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.$15,000,000 and in integral multiples of $1,000,000 in excess thereof;
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees tosubject, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment being used to finance a Limited Condition Acquisition, to Section 1.8, no Default or Event of Default shall exist and be continuing at the time of any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan;
(d) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.8, the conditions set forth in Section 3.2 shall be satisfied as of the date of any other such Person increase in the Aggregate Revolving Commitments or establishment of any Incremental Term Loan;
(e) subject, in the case of an “Additional Lender”)Incremental Term Loan being used to finance a Limited Condition Acquisition, which at to Section 1.8, the time agrees Borrower shall have provided to become the Administrative Agent a party to this AgreementPro Forma Compliance Certificate, if not already a Lender; provided, however, that any new bank or financial institution must be in form an detail reasonably acceptable to the Administrative Agent, demonstrating compliance with the financial covenants in Article VI recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which acceptance will the Borrower has delivered financial statements pursuant to Sections 5.1(a) or (b), after giving effect to such increase or Incremental Term Loan on a Pro Forma Basis;
(f) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request relating to such increase in the Aggregate Revolving Commitments or such establishment of such Incremental Term Loan, all in form and substance reasonably satisfactory to the Administrative Agent;
(g) with respect to any Incremental Term Loan, (i) the final maturity date shall be no earlier than (x) the Latest Maturity Date or (y) the maturity date for any then-existing Incremental Term Loan and (ii) the weighted average life to maturity of such Incremental Term Loan shall not be unreasonably withheld, conditioned or delayed. The sum shorter than the weighted average life to maturity of the increases any then-existing Incremental Term Loan (provided that any such Indebtedness in the form of bridge notes or bridge loans shall not be required to meet the requirement in this clause (g) so long as such bridge notes or bridge loans provide for automatic conversion, subject to customary conditions, into “permanent” financing that satisfies such requirement);
(h) any increase in the Aggregate Revolving Commitments of the existing Lenders pursuant under this Section 2.23 shall have terms identical to this subsection (c) plus those for the Revolving Commitments Loans under this Agreement, except for (i) upfront fees payable to the Lenders providing commitments for such increase and (ii) arrangement fees payable to the Arrangers or their Affiliates in connection with the establishment of the Additional Lenders shall not such increase in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.;
(di) No no Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an any Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an any Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.;
(ej) An the Borrower may designate a bank or other financial institution that is not already a Lender to provide all or any portion of any increase in the aggregate amount of the Aggregate Revolving Commitments or the establishment of an Incremental Term Loan Commitments Commitment, so long as (i) such Person (an “Additional Lender”) becomes a party to this Agreement pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement lender joinder agreement or joinder other document in form and substance reasonably satisfactory to the Administrative Agent that has been executed by the Borrower and such Additional Lender, (ii) any such Person proposed by each the Borrower to become an Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to must be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) and, if such Additional Lender is to provide a Revolving Commitment, each of the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower Issuing Bank and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.Swingline Lender;
(ik) Notwithstanding anything to the contrary set forth in Section 3.2, an any increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Aggregate Revolving Commitments or establishment of an Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by pursuant to a Material Adverse Effect commitment agreement, joinder agreement or other materiality, document in which case such representations form and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate substance reasonably acceptable to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, and upon the Aggregate Revolving Commitment Amount effectiveness of such commitment agreement, joinder agreement or other document pursuant to the terms thereof, the Commitments, as applicable, shall automatically be increased by the amount of the Revolving Commitments added through such commitment agreement, joinder agreement or other document and Schedule II I shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.; and
(gl) Upon with respect to any increase in the aggregate amount Aggregate Revolving Commitments, (i) each Lender providing a portion of the increase shall make Revolving Commitments pursuant Loans, the proceeds of which shall be applied by the Administrative Agent to this Section 2.24 that is not pro rata among all prepay Revolving Loan Loans of the existing Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay an amount necessary such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments that after giving effect to such increase, until such time as all thereto each Lender will hold its Pro Rata Share of outstanding Revolving Loans are held by the Revolving Loan (such payments to existing Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry subject to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment AmountSection 2.19), and (yii) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit and each Swingline Loan then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit or such Swingline Loan in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, but only with the prior written consent of the Administrative Agent, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments and/or the aggregate Term Loan Commitments hereunder (each such increase, upon at least 10 days’ written notice an “Incremental Commitment”) so long as the following conditions are satisfied:
(or i) the aggregate principal amount of all such shorter period Incremental Commitments made pursuant to this Section shall not exceed $20,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects);
(iv) (x) any incremental Term Loans made pursuant to this Section (the “Incremental Term Loans”) shall have a maturity date no earlier than the Maturity Date and shall have a Weighted Average Life to Maturity no shorter than that of the Term Loans made pursuant to Section 2.5, and (y) any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have the same termination date as the Revolving Commitment Termination Date;
(v) the pro forma Total Leverage Ratio of Borrower and its Subsidiaries shall not exceed the lesser of (x) the Total Leverage Ratio required under Section 6.1 as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered minus 0.25 to 1.00 and (y) the Total Leverage Ratio of the Borrower and the Subsidiaries on the Closing Date, calculated as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance;
(vi) if the Initial Yield applicable to any such Incremental Term Loans exceeds by more than 0.50% per annum the sum of the Applicable Margin then in effect for Eurodollar Term Loans, plus one fourth of the Up-Front Fees paid in respect of the existing Term Loans (the “Existing Yield”), then the Applicable Margin of the existing Term Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum;
(vii) the Applicable Margin for any such Incremental Revolving Commitments shall be the same as the Applicable Margin for the existing Revolving Loans; provided, that any up-front fees payable on such dateIncremental Revolving Commitments may be higher than the up-front fees paid in connection with the existing Revolving Loans;
(viii) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis; and
(ix) except as specifically set forth herein, all terms of any Incremental Revolving Commitments and Incremental Term Loans shall be identical to the Revolving Commitments and the Term Loans, respectively, except for representations and warranties that expressly relate as otherwise agreed by the Required Lenders.
(b) The Borrower shall provide at least 15 days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an earlier dateIncremental Commitment. In any such notice, the Borrower shall specify any fees offered to any Lenders who are approached to provide an Incremental Commitment (the “Increasing Lenders”), which shall fees may be true and correct in all material respects (or in all respectsvariable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or its Term Loan Commitment, as applicable) . Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such earlier date; provided thatnotice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or its Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or its Term Loan Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments and/or the Term Loan Commitments, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or its Term Loan Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment and/or its Term Loan Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment and/or its Term Loan Commitment, as applicable. The Borrower may accept some or all of the offered amounts or designate new lenders, which, solely with respect to any Incremental Revolving Commitments, shall be approved by the establishment Administrative Agent (such approval not to be unreasonably withheld), as additional Lenders hereunder in accordance with this Section 2.23 (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments and the Term Loan Commitments entered into in connection with of the financing of a Limited Condition Acquisition, Increasing Lenders plus the Lenders providing such Incremental Revolving Commitments and the Term Loan Commitments may agree of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Commitments and/or new Term Loan Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a “funds certain provision” that:party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) does not impose as a condition to funding thereof that no Default or Event such evidence of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing appropriate corporate authorization on the Limited Condition Acquisition Test Date part of the Borrower with respect to such Limited Condition Acquisition Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(yiii) no Default a certificate of the Borrower signed by a Responsible Officer of the Borrower, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or Event of Default under any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans, issued by the Borrower in accordance with Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated2.10; and
(iiiv) provides any other certificates or documents that the only representations Administrative Agent shall reasonably request, in form and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect substance reasonably satisfactory to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties)Administrative Agent.
(fd) Upon the acceptance effectiveness of any such agreement by the Administrative AgentIncremental Commitment, the Aggregate Revolving Commitment Amount shall automatically Commitments and Pro Rata Share of each Lender will be increased by adjusted to give effect to the amount of the Incremental Revolving Commitments added through such agreement and/or the Incremental Term Loans, as applicable, and Schedule II shall automatically be deemed amended accordingly.
(e) Any Incremental Revolving Commitments shall (except for the amounts thereof) have terms that are identical to reflect the Revolving Commitments. Without limiting the other terms herein, if any Incremental Term Loan Commitments or Revolving Commitments Loans are to have terms that are different from the Term Loans outstanding immediately prior to such incurrence (any such Incremental Term Loans, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among the Borrower, the Lenders providing such Incremental Term Loans and the Administrative Agent, the execution and delivery of all Lenders after giving effect which agreement shall be a condition to the addition effectiveness of the Non-Conforming Credit Extensions. The scheduled principal payments on the Term Loans to be made pursuant to Section 2.9 shall be ratably increased after the making of any Incremental Term Loans (other than Term Loans that are Non-Conforming Credit Extensions) under this Section by the aggregate principal amount of such Incremental Term Loan Loans. After the incurrence of any Non-Conforming Credit Extensions, all optional prepayments of Term Loans shall be allocated ratably between the then-outstanding Term Loans and such Non-Conforming Credit Extensions that are Term Loans. If the Borrower incurs Incremental Revolving Commitments or under this Section, the Borrower shall, after such time, repay and incur Revolving Commitments.
(g) Upon any increase in Loans ratably as between the aggregate amount of Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section 2.24 that is not and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case allocations of any Eurodollar Loans and Base Rate Loans then outstanding, between Loans incurred pursuant to this Section and at Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the end Non-Conforming Credit Extensions consisting of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, Incremental Revolving Commitments and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion Commitments outstanding immediately prior to their respective Revolving Commitments after giving effect to any such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increaseincurrence); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(hf) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination For purposes of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of paymentSection, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to following terms shall have the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.meanings specified below:
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The Borrower maymay from time to time, upon at least 10 five days’ prior written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) to establish one or more incremental new term loan commitments loans (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loaneach, an “Incremental Term Loan”); provided, by that:
(a) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.8, the aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to all increases in the Aggregate Revolving Commitments or such plus the aggregate initial principal amount of all Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and Loans after the Third Amendment Effective Date shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) exceed $800,000,000 plus an unlimited amount so long as the pro forma Consolidated Net Leverage Ratio is not greater than 4.00:1.00, recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 5.1(a) or (determined (1) b), after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and or Incremental Term Loan Commitments may, at on a Pro Forma Basis (assuming the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the full amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments is fully drawn and without “netting” the cash proceeds thereof);
(b) any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan shall increase any be in a minimum principal amount of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.$15,000,000 and in integral multiples of $1,000,000 in excess thereof;
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees tosubject, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment being used to finance a Limited Condition Acquisition, to Section 1.8, no Default or Event of Default shall exist and be continuing at the time of any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan;
(d) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.8, the conditions set forth in Section 3.2 shall be satisfied as of the date of any other such Person increase in the Aggregate Revolving Commitments or establishment of any Incremental Term Loan;
(e) subject, in the case of an “Additional Lender”)Incremental Term Loan being used to finance a Limited Condition Acquisition, which at to Section 1.8, the time agrees Borrower shall have provided to become the Administrative Agent a party to this AgreementPro Forma Compliance Certificate, if not already a Lender; provided, however, that any new bank or financial institution must be in form an detail reasonably acceptable to the Administrative Agent, demonstrating compliance with the financial covenants in Article VI recomputed as of the end of the period of the four Fiscal Quarters most recently ended for which acceptance will the Borrower has delivered financial statements pursuant to Sections 5.1(a) or (b), after giving effect to such increase or Incremental Term Loan on a Pro Forma Basis;
(f) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request relating to such increase in the Aggregate Revolving Commitments or such establishment of such Incremental Term Loan, all in form and substance reasonably satisfactory to the Administrative Agent;
(g) with respect to any Incremental Term Loan, (i) the final maturity date shall be no earlier than (x) the Latest Maturity Date or (y) the maturity date for any then-existing Incremental Term Loan and (ii) the weighted average life to maturity of such Incremental Term Loan shall not be unreasonably withheld, conditioned or delayed. The sum shorter than the weighted average life to maturity of the increases any then-existing Incremental Term Loan (provided that any such Indebtedness in the form of bridge notes or bridge loans shall not be required to meet the requirement in this clause (g) so long as such bridge notes or bridge loans provide for automatic conversion, subject to customary conditions, into “permanent” financing that satisfies such requirement);
(h) any increase in the Aggregate Revolving Commitments of the existing Lenders pursuant under this Section 2.23 shall have terms identical to this subsection (c) plus those for the Revolving Commitments Loans under this Agreement, except for (i) upfront fees payable to the Lenders providing commitments for such increase and (ii) arrangement fees payable to the Arrangers or their Affiliates in connection with the establishment of the Additional Lenders shall not such increase in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.;
(di) No no Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an any Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an any Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.;
(ej) An the Borrower may designate a bank or other financial institution that is not already a Lender to provide all or any portion of any increase in the aggregate amount of the Aggregate Revolving Commitments or the establishment of an Incremental Term Loan Commitments Commitment, so long as (i) such Person (an “Additional Lender”) becomes a party to this Agreement pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement lender joinder agreement or joinder other document in form and substance reasonably satisfactory to the Administrative Agent that has been executed by the Borrower and such Additional Lender, (ii) any such Person proposed by each the Borrower to become an Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to must be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) and, if such Additional Lender is to provide a Revolving Commitment, each of the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower Issuing Bank and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.Swingline Lender;
(ik) Notwithstanding anything to the contrary set forth in Section 3.2, an any increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Aggregate Revolving Commitments or establishment of an Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by pursuant to a Material Adverse Effect commitment agreement, joinder agreement or other materiality, document in which case such representations form and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate substance reasonably acceptable to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, and upon the Aggregate Revolving Commitment Amount effectiveness of such commitment agreement, joinder agreement or other document pursuant to the terms thereof, the Commitments, as applicable, shall automatically be increased by the amount of the Revolving Commitments added through such commitment agreement, joinder agreement or other document and Schedule II I shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.; and
(gl) Upon with respect to any increase in the aggregate amount Aggregate Revolving Commitments, (i) each Lender providing a portion of the increase shall make Revolving Commitments pursuant Loans, the proceeds of which shall be applied by the Administrative Agent to this Section 2.24 that is not pro rata among all prepay Revolving Loan Loans of the existing Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay an amount necessary such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments that after giving effect to such increase, until such time as all thereto each Lender will hold its Pro Rata Share of outstanding Revolving Loans are held by the Revolving Loan (such payments to existing Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry subject to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment AmountSection 2.19), and (yii) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit and each Swingline Loan then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit or such Swingline Loan in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The Borrower mayshall have the right from time to time, upon at least 10 daysfive (5) Business Days’ prior written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such or twenty (20) days’ notice to each Revolving Loan Lenderas set forth in clause (m) below), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental additional term loan commitments loans (any each such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”) by up to $50,000,000, provided, that:
(a) no Default or Event of Default shall have occurred and be continuing on the date on which such increase in the Aggregate Revolving Commitments or Incremental Term Loan is to become effective;
(b) such increase in the Aggregate Revolving Commitments or Incremental Term Loan shall be in a minimum amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or such lesser amounts as the Administrative Agent may agree in its discretion), ;
(c) such increase in the Aggregate Revolving Commitments or Incremental Term Loan shall be effective only upon receipt by an aggregate amount not to exceed the sum Administrative Agent of (x) additional Revolving Commitments in a corresponding amount of such requested increase in the greater Aggregate Revolving Commitments or Incremental Term Loan Commitments from either existing Lenders and/or one or more other institutions that qualify as assignees under Section 11.4 (each such institution, an “Additional Lender”) and which are reasonably acceptable to the Borrower, the Administrative Agent and, in the case of (1) $300,000,000 any increase in the Aggregate Revolving Commitments, the Issuing Banks and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) Swingline Lender and (y) if either documentation from each existing Lender or Additional Lender providing an additional Revolving Commitment or Incremental Term Loan Commitment evidencing its agreement to provide additional Revolving Commitment or Incremental Term Loan Commitment and/or its acceptance of such increase the obligations under this Agreement in form and substance reasonably acceptable to the Aggregate Administrative Agent;
(d) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties, if required to be provided by the Lenders, providing such additional Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition Commitments) it may reasonably request relating to the corporate or other Investments permitted by this Agreement, any amounts (which necessary authority for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any or establishment of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for such Incremental Term Loan and the validity of such increase in the Aggregate Revolving Commitments or establishment of such Incremental Term Loan, and any other documents relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received a Pro Forma Compliance Certificate from a Responsible Officer of the Borrower demonstrating compliance with the financial covenants hereunder after giving effect to such increase in the Aggregate Revolving Commitments (assuming, for purposes of such demonstration, that all Revolving Commitments, as increased, are fully drawn) or if any Revolving Incremental Term Loan Lender shall not elect on a Pro Forma Basis in form and substance reasonably satisfactory to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24the Administrative Agent; provided, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees tothat, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in subject to the case of any other Incremental Funds Certain Provision, such Person (an “Additional Lender”), which compliance will be determined at the time agrees to become a party to this Agreement, if the applicable Acquisition Agreement is entered into (but not already a Lender; provided, however, that any new bank or financial institution must be acceptable more than ninety (90) days prior to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum consummation of such Permitted Acquisition);
(f) if any Revolving Loans are outstanding at the time of the increases increase in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments., the Borrower shall, if applicable, have prepaid one or more existing Revolving Loans (such prepayment to be subject to Section 2.19) in an amount necessary such that after giving effect to the increase in the Aggregate Revolving Commitments, each Lender will hold its Pro Rata Share of outstanding Revolving Loans;
(dg) No any increase in the Aggregate Revolving Commitments under this Section 2.23 shall have terms identical to those for the Revolving Loans under this Agreement, except for any fees that may be payable to the Lenders providing commitments for such increase in the Aggregate Revolving Commitments;
(h) amortization, pricing and use of proceeds applicable to any Incremental Term Loan shall be as set forth in the definitive documentation therefor; provided that (i) any such Incremental Term Loan shall have a final maturity date that is later than the Revolving Commitment Termination Date and the Maturity Date of each then outstanding Term Loan, (ii) the weighted average life to maturity of such Incremental Term Loan shall be no earlier than the weighted average life to maturity of the Term Loan A or any other then-existing Incremental Term Loan and (iii) with respect to any Incremental Term Loan established on or before the second anniversary of the Closing Date, the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity), but excluding arrangement, structuring and underwriting fees paid or payable to the Arranger or its Affiliates) applicable to such Incremental Term Loan shall not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the Term Loan A or any then outstanding Incremental Term Loan (it being understood that interest on the Term Loan A and any existing Incremental Term Loan may be increased to the extent necessary to satisfy this requirement);
(i) all conditions precedent to the making of a Loan and/or the issuance of a Letter of Credit set forth in Section 3.2 shall have been satisfied at the time of any increase in the Aggregate Revolving Commitments (even if there is no Borrowing thereunder on such date);
(j) no Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an any Incremental Term Loan CommitmentLoan, and any decision by a Lender to increase its Revolving Commitment or provide an any Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.;
(ek) An neither the Arranger nor any Lender shall have any responsibility for arranging any such increased or additional Revolving Commitments or Incremental Term Loans without their prior written consent and subject to such conditions, including fee arrangements, as they may provide in connection therewith;
(l) prior to any increase in the aggregate amount of the Aggregate Revolving Commitments or the establishment of any Incremental Term Loan Commitments pursuant to this Section 2.24 2.23, either (i) the Convertible Note Indebtedness shall become effective upon have been repaid in full (or repaid in full concurrently with any such increase in the receipt by Aggregate Revolving Commitments or such establishment of such Incremental Term Loan) or (ii) the Administrative Agent of a supplement or joinder in form and substance shall have received reasonably satisfactory evidence that the holders of the Convertible Note Indebtedness have agreed that such increased Aggregate Revolving Commitments or Incremental Term Loan, as applicable, when taken together with the then existing Aggregate Revolving Commitments and the outstanding principal amount of all then existing Term Loans, will constitute Priority Senior Debt (as defined in the Convertible Note Subordination Agreement), which evidence may be in the form of an amendment to the Convertible Note Subordination Agreement) and is not prohibited under each of the Convertible Note Documents; and
(m) prior to the date of any increase in the Aggregate Revolving Commitments or establishment of an Incremental Term Loan, the Administrative Agent shall have received (and promptly furnished to the Lenders) (i) a completed “life of loan” Federal Emergency Management Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and appropriate Loan Party relating thereto if required) and (ii) proof of flood insurance under the insurance policies required by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is Section 5.8(d); provided, that, notwithstanding anything to be increasedthe contrary contained herein, setting forth if there are any Mortgaged Properties at the new Revolving Commitments time of any increase or the establishment of any Incremental Term Loan Commitments Loan, the Administrative Agent shall have received (and promptly furnished to the Lenders) notice from the Borrower of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, increase at least twenty (20) days prior to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing date of such increase in the Revolving Commitment or promissory notes evidencing the incurrence establishment of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan CommitmentsLoan. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary in the foregoing, if the proceeds of any Incremental Term Loan are being used to finance a Permitted Acquisition made pursuant to an acquisition agreement, binding on the Borrower or any of its Subsidiaries, entered into in advance of the consummation thereof (an “Acquisition Agreement”), and the Borrower has obtained on or prior to the closing thereof binding commitments of Lenders and/or Additional Lenders to fund such Incremental Term Loan, then the conditions to the funding and incurrence of any such Incremental Term Loan shall be limited as follows: (A) the condition set forth in Section 3.23.2(b) shall apply only with respect to Specified Representations, an increase in (B) the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents Acquisition Agreement made by or with respect to the Acquired Business that are material to the interests of the Lenders shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or and/or any of its Restricted Subsidiaries) , as applicable, has the right to terminate the Borrower’s (its or such Restricted Subsidiary’s) their obligations under such Limited Condition the Acquisition Agreement or to decline to not consummate the transactions contemplated by such Limited Condition Permitted Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement, and (C) the reference to “no Default or Event of Default” in Section 3.2(a) shall mean (1) the absence of a Default or Event of Default at the date the applicable Acquisition Agreement is executed and delivered and (or 2) the failure absence of such representations or warranties to be true and correct or to satisfy a Specified Event of Default at the closing conditions date the applicable Permitted Acquisition is consummated. For purposes of clarity, increases in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount Commitments shall automatically not be increased by subject at any time to the amount Incremental Funds Certain Provision. Nothing in the foregoing constitutes a waiver of any Default or Event of Default under this Agreement or of any rights or remedies of Lenders and the Administrative Agent under any provision of the Revolving Commitments added through such agreement Loan Documents. The provisions of this paragraph are collectively referred to in this Agreement as the “Incremental Funds Certain Provision”. For purposes of determining compliance on a Pro Forma Basis with the financial covenants in Article VI or other ratio requirement under this Agreement, or whether a Default or Event of Default has occurred and Schedule II shall automatically be deemed amended to reflect is continuing, in each case in connection with the consummation of a Permitted Acquisition using proceeds from an Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect that qualifies to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and be subject to the conditions specified in Article 3Incremental Funds Certain Provision, the Borrower date of determination shall, at the option of the Borrower, be the date of execution of such Acquisition Agreement, and such determination shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments be made after giving effect to such increaseAcquisition (and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof)) on a Pro Forma Basis, until and, for the avoidance of doubt, if such time financial covenants or other ratio requirement is subsequently breached as all outstanding Revolving Loans are held by a result of fluctuations in the Revolving Loan Lenders ratio that is subject of such financial covenants or other ratio requirement (including due to fluctuations in proportion Consolidated EBITDA of the Borrower or the EBITDA of the Acquired Business), at or prior to their respective Commitments after giving effect the consummation of such Acquisition (and the other transactions to be entered into in connection therewith), such increase)financial covenants or other ratio requirement will not be deemed to have been breached as a result of such fluctuations solely for the purpose of determining whether such Acquisition (and the other transactions to be entered into in connection therewith) constitutes a Permitted Acquisition; provided provided; that with respect to this subclause (x) if the Borrower elects to have such determination occur at the time of entry into the applicable Acquisition Agreement (and not at the time of consummation of the Acquisition), (AI) the prepayment to, and borrowing from, any existing Lender Incremental Term Loan to be incurred shall be effected by book entry deemed incurred at the time of such election (unless the applicable Acquisition Agreement is terminated without actually consummating the applicable Permitted Acquisition (in which case such Acquisition and related Incremental Term Loan will not be treated as having occurred)) and outstanding thereafter for purposes of calculating compliance, on a Pro Forma Basis, with any applicable financial covenants or other ratio requirement in this Agreement (even if unrelated to the extent that any portion determining whether such Acquisition is a Permitted Acquisition) and (II) such Permitted Acquisition must close within ninety (90) days of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) signing of the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), applicable Acquisition Agreement and (y) effective upon such increase, the amount EBITDA of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding Acquired Business shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class disregarded for any all purposes under this Agreement. Any Incremental Term Loans shall be entitled to all Agreement other than determining whether such Acquisition is a Permitted Acquisition until the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that consummation of such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan CommitmentPermitted Acquisition.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, 2.23, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, upon at least 10 days’ written notice an “Incremental Commitment”) so long as (or other than with respect to the JBBR Acquisition Incremental Commitments) the following conditions are satisfied:
(i) the aggregate principal amount of all such shorter period Incremental Commitments made pursuant to this Section 2.23 after the Second Amendment Effective Date (but excluding the JBBR Acquisition Incremental Commitments) shall not exceed $100,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing exist and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on except to the extent any such date, except for representations and warranties that expressly representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be have been true and correct in all material respects (or in all respects, as applicable) on and as of such earlier date;
(iv) the MLP and its Restricted Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if any Borrowing made on the date such Incremental Commitments are established had been funded as of the first day of the relevant period for testing compliance;
(v) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis; and
(vi) all terms and conditions with respect to any such Incremental Commitments shall be the same as those contained in the Loan Documents or otherwise reasonably satisfactory to the Administrative Agent; provided that, solely that any upfront fees paid with respect to such Incremental Commitments may be greater than the upfront fees paid with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or existing Revolving Commitments.
(gb) Upon The Borrower shall provide at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment (other than the JBBR Acquisition Incremental Commitments). The Borrower may also, but is not required to, specify any fees offered to those Lenders that agree to increase the principal amount of their Revolving Commitments (the “Increasing Lenders”), which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Section. No Lender which declines to increase the principal amount of its Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that Commitment may be replaced with respect to this subclause (x)its existing Revolving Commitment as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice, (A) the prepayment to, and borrowing from, any existing such Lender shall be effected by book entry deemed to have declined to increase its Revolving Commitment. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the extent that any Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower and the amount prepaid Administrative Agent shall have discretion jointly to adjust the allocation of such Lender will be subsequently borrowed from such Lender Incremental Commitments among the Increasing Lenders and (B) the existing Additional Lenders. The sum of the increase in the Revolving Loan Lenders, as applicable, and Commitments of the Increasing Lenders plus the Revolving Commitments of the Additional Lenders shall make not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and receive payments among themselves(b) of this Section, any increase requested by the Borrower (other than the JBBR Acquisition Incremental Commitments) shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in a manner form and substance reasonably acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Commitments, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Commitments, and Schedule I shall automatically be deemed amended accordingly.
(d) If the Borrower incurs Incremental Commitments under this Section, the Borrower shall, after such time, repay and incur Revolving Loans ratably as between the Incremental Commitments and the Additional Lenders Revolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding sentence, amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such other Lenders, incurrence and amendments to implement ratable participation in each case who are providing Letters of Credit between the Incremental Commitments and the Revolving Commitments outstanding immediately prior to any such Incremental Term Loan Commitmentincurrence).
Appears in 1 contract
Sources: Revolving Credit Agreement (Arc Logistics Partners LP)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and before the date that is ninety (90) days prior to the Revolving Commitment Termination Date, and in accordance with this Section, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, upon at least 10 days’ written notice an “Incremental Commitment”) so long as the following conditions are satisfied:
(or i) the aggregate principal amount of all such shorter period Incremental Commitments made pursuant to this Section shall not exceed $25,000,000.00 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2013, or, if and as applicable, the date of the most-recent financial statements actually delivered by Borrower pursuant to Section 5(a) on such dateof this Agreement, except for representations there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have a termination date no earlier than the Revolving Commitment Termination Date;
(v) the Borrower and warranties that expressly relate to an earlier date, which its Subsidiaries shall be true and correct in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all material respects such Incremental Revolving Commitments had been established as of the first day of the relevant period for testing compliance;
(or vi) if the Initial Yield applicable to any such Incremental Revolving Commitments exceeds by more than 0.50% per annum, the sum of the Applicable Margin then in all respectseffect for Eurodollar Revolving Loans, as applicable) , plus one-fourth of the Up-Front Fees paid in respect of the existing Revolving Commitments, as applicable (the “Existing Yield”), then the Applicable Margin of such earlier date; provided thatthe existing Revolving Loans, solely with respect as applicable, shall increase by an amount equal to the establishment of Incremental Term Loan Commitments entered into in connection with difference between the financing of a Limited Condition Acquisition, Initial Yield and the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummatedExisting Yield minus 0.50% per annum; and
(iiivii) provides that the only representations all other terms and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or conditions with respect to the applicable target in the Limited Condition Acquisition Agreement that are material any such Incremental Commitments shall be reasonably satisfactory to the interests Administrative Agent.
(b) The Borrower shall provide at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment (each an “Incremental Commitment Notice”). Within the first thirty (30) days after Borrower’s delivery of any Incremental Commitment Notice (the “Exclusive Option Period”), SunTrust Bank shall have the sole and exclusive right (without obligation) to elect to provide all or a portion of such Incremental Commitment. Following the expiration of the LendersExclusive Option Period, but only any Lender or Increasing Lender offered or approached to provide all or a portion of any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment to the extent not exercised and elected by SunTrust Bank during the Exclusive Option Period. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Restricted Subsidiaries) has the right Revolving Commitment, and any decision by a Lender to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate increase its Revolving Commitment Amount shall automatically be increased by made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments added through pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment may be replaced with respect to its existing Revolving Commitment, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments of the Increasing Lenders plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments, and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitmentsaccordingly.
(gd) Upon If any increase in the aggregate amount of Incremental Revolving Commitments are to have terms that are different from the Revolving Commitments pursuant outstanding immediately prior to this Section 2.24 that is not pro rata among all such incurrence (any such Incremental Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstandingCommitments, the Borrower “Non-Conforming Credit Extensions”), all such terms shall prepay such Loans be as set forth in their entirety and, to a separate assumption agreement among the extent the Borrower elects to do so and subject to the conditions specified in Article 3Borrower, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective providing such Incremental Incremental Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans execution and delivery of such Lenders are held ratably by which agreement shall be a condition to the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount effectiveness of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.Non-
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The From time to time after the Amendment and Restatement Effective Date and in accordance with this Section, the Borrower may, upon at least 10 days’ written notice and one or more Increasing Lenders or Additional Lenders (or such shorter period each as defined below) may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose enter into an agreement to (i) increase either the Aggregate aggregate principal amount of the Revolving Commitments or and/or (ii) establish one or more incremental term loan commitments tranches of Incremental Term Loan Commitments hereunder (any each such incremental term loan commitmentincrease or additional tranche, an “Incremental Term Loan Commitment” and the principal amount thereof, the “Incremental Commitment Amount”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount this Section shall not to exceed the sum of (xA) the greater of (1I) $300,000,000 44,000,000 and (2II) 100% of LTM Consolidated EBITDA for the most recently ended Test Period plus (as of the date incurredB) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any additional amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the Leverage Ratio, calculated on a Pro Forma Basis (giving pro forma Leverage Ratio (determined (1) after giving effect to the incurrence of such acquisition Incremental Commitments (and assuming that such acquisition was consummated on treating any unfunded Incremental Commitments as fully drawn) and any transactions entered into in connection therewith, including the first day incurrence or repayment of any Indebtedness and any Acquisitions) without netting the cash proceeds of the most recently ended period Incremental Term Loans or Revolving Loans made under such US-DOCS\151470090.12 Incremental Commitments or the proceeds of four consecutive Fiscal Quarters any other Indebtedness incurred substantially concurrently therewith, does not exceed 2.50:1.00;
(ii) the Borrower shall execute and (2) deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees tosubject, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment (and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the related Incremental Term Loan Commitments) used to finance a Limited Condition Acquisition, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to1.5, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofCommitment, (x) no Default or Event of Default shall exist; provided that (A) in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition not prohibited by this Agreement, the Lenders providing such Incremental Commitment and the Administrative Agent may agree that such condition shall be limited to an absence of an Event of Default under Section 8.1(a), (b), (g), (h) or (i) and (B) if the Borrower makes an LCA Election pursuant to Section 1.5 and such condition is tested as of the applicable LCA Test Date, it shall also be a condition that no Event of Default under Section 8.1(a), (b), (g), (h) or (i) shall have occurred and be continuing or would result from the incurrence of such Incremental Term Loan (and related Term Loan Commitments) and the transactions consummated in connection therewith (including the incurrence of any Indebtedness and the use proceeds thereof) on the date on which such Incremental Term Loan (and related Incremental Term Loan Commitments) is incurred and the applicable Limited Condition Acquisition is consummated, and (y) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on as of the date of the establishment of such dateIncremental Commitment (or, except for representations and warranties that expressly relate if such representation or warranty relates to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date); provided that, solely with respect to that in the establishment case of any Incremental Term Loan Commitments entered into in connection with Commitment obtained for the purposes of financing of a Limited Condition Acquisitionan Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Term Loan Commitments Commitment may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making accuracy of which shall be a condition to funding thereof such Incremental Commitment (and the Incremental Term Loans or Revolving Loans provided thereunder) shall be (xI) certain “specified representations” agreed to by the Lenders providing such Commitments Specified Representations and (yII) the representations and warranties made by or with respect to on behalf of the applicable target in the Limited Condition purchase, acquisition or similar agreement governing such Acquisition Agreement that or other Investment as are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted the Borrower’s applicable Affiliates or Subsidiaries) has the right (determined without regard to any notice requirement) not to consummate or the right to terminate (or cause the termination of) the Borrower’s (or such Restricted Subsidiary’sAffiliates’ or Subsidiaries’) obligations under such Limited Condition Acquisition Agreement purchase, acquisition or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement other agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement purchase, acquisition or other agreement (or the failure of such representations or warranties to be true and correct accurate or to satisfy the closing conditions in such Limited Condition Acquisition Agreement purchase, acquisition or other agreement applicable to such representations or warranties) (such representations and warranties, the “Specified Target Representations”).;
(fiv) Upon (x) any incremental term loans made pursuant to this Section (the acceptance “Incremental Term Loans” and, the commitments with respect thereto, the “Incremental Term Loan Commitments”) shall have a maturity date no earlier than the latest Maturity Date in effect at the time such Incremental Term Loans are incurred, if any Term Loans are then outstanding, shall have a Weighted Average Life to Maturity no shorter than that of any then-outstanding US-DOCS\151470090.12 Term Loans (without giving effect to previous reductions in and previously made amortization payments on such agreement by Term Loans) and shall otherwise have terms (other than (I) pricing and any representations, warranties, covenants and other provisions applicable only to periods after the latest Maturity Date hereunder at such time or (II) as are incorporated into the Loan Documents for the benefit of all existing Lenders (which, in the case of this subclause (II), may, if beneficial for the Lenders, be accomplished via an amendment to the existing Loan Documents entered into between the Borrower, the other Credit Parties and the Administrative Agent, without the Aggregate consent of the Lenders)) that either are consistent with the applicable terms of the existing Loans and Commitments hereunder or are reasonably satisfactory to the Administrative Agent, and (y) any incremental Revolving Commitment Amount Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall automatically have identical terms (including pricing and termination date; provided that upfront fees for any Incremental Revolving Commitments will be increased permitted and shall be determined by the amount of Borrower and the Lenders providing such Incremental Revolving Commitments) to the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect treated as the Incremental Term Loan Commitments or same Class as the Revolving Commitments and the Borrower shall, after the establishment of all Lenders after giving effect to the addition of such any Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 Section, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such increase (provided that is such repayment and incurrence may, with the Administrative Agent’s consent, be effectuated through assignments among Lenders with Revolving Commitments, which shall not pro rata among all require an Assignment and Acceptance and may be effectuated by the Administrative Agent through changes in the Register and fundings from such Lenders providing Incremental Commitments); provided, further, that Interest Periods applicable to Incremental Term Loans or Revolving Loan LendersLoans advanced pursuant to Incremental Revolving Commitments may, at the election of the Administrative Agent and the Borrower, be made with Interest Period(s) identical to the then remaining Interest Period(s) applicable to any existing Term Loans of the relevant Class or existing Revolving Loans of the applicable Class (xand allocated to such Interest Period(s) within five Business Dayson a proportional basis);
(v) subject, in the case of any Base Rate Loans then outstandingan Incremental Term Loan (and related Incremental Term Loan Commitments) used to finance a Limited Condition Acquisition, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstandingto Section 1.5, the Borrower and its Subsidiaries shall prepay such Loans be in their entirety and, to pro forma compliance with each of the extent the Borrower elects to do so and subject to the conditions specified financial covenants set forth in Article 3VI as of the most recently ended Test Period, the Borrower shall reborrow the Revolving calculated as if all such Incremental Term Loans from the Revolving Loan Lenders in proportion to their respective had been made and all such Incremental Revolving Commitments after had been established (and fully funded) as of the first day of the relevant period for testing compliance (including giving effect to any Acquisitions on a Pro Forma Basis that are contemplated to be funded with such increase, until Incremental Term Loans or Incremental Revolving Commitments); and
(vi) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis.
(b) The Borrower shall provide at least ten (10) days’ (or such shorter period of time as all outstanding Revolving Loans are held may be agreed to by the Revolving Loan Lenders Administrative Agent in proportion its sole discretion) written notice to their respective Commitments after giving effect the Administrative Agent (who shall promptly provide a copy of such notice to such increase); provided that with respect each Lender) of any proposal to this subclause (x)establish an Incremental Commitment. The Borrower may also, (A) the prepayment but is not required to, and borrowing fromspecify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or provide Incremental Term Loan Commitments, which fees may be variable based upon the amount by which any existing such Lender shall be effected by book entry is willing to increase the extent that any portion principal amount of its Revolving Commitment and/or the principal amount of the amount prepaid Incremental Term Loan Commitment such US-DOCS\151470090.12 Lender is willing to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lendersprovide, as applicable. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment, and the Additional Lenders shall make and receive payments among themselves, in any decision by a manner acceptable Lender to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional increase its Revolving Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing and/or provide an Incremental Term Loan Commitment shall be included made in its sole discretion independently from any determination other Lender. Only the consent of each Increasing Lender shall be required for Incremental Commitments pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment may be replaced with respect to its existing Revolving Commitment, its existing Term Loan Commitment (if any) and/or its existing Term Loans (if any), as applicable, as a result thereof without such Lender’s consent. The Borrower may accept some or all of the Required offered amounts from existing Lenders and or designate new lenders that are acceptable to the Administrative Agent (any such Lenders will not constitute a separate voting class consent to be required only to the extent required under Section 10.4(b) for an assignment of Loans or Commitments of such Type to such new lender), the Borrower and, in the case of any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all Revolving Commitments, each Issuing Bank (such approvals of the benefits afforded byAdministrative Agent, this Agreement the Borrower and the other Loan DocumentsIssuing Banks not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), and shall, without limiting which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower shall have discretion to adjust the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the then-existing Lenders and the Additional Lenders (as it may be subordinated elect). The sum of the increase in right the principal amount of payment, the Liens securing such Revolving Commitments and the aggregate principal amount of the Incremental Term Loans may Loan Commitments of the Increasing Lenders plus the principal amount of the Revolving Commitments and the aggregate principal amount of the Term Loan Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any increase requested by the Borrower shall be subordinated or such effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder (each, an “Incremental Term Loans may be unsecuredCommitment Joinder”), in each case, form and substance reasonably acceptable to the extent set forth in an amendment to this Agreement as mutually agreed Administrative Agent, executed by the Administrative Agent, by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Revolving Commitments and/or Incremental Term Loan Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent and may reasonably request;
(iii) a certificate of the Additional Lenders or such other LendersBorrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied; provided that, in the case who of an Incremental Term Loan (and related Incremental Term Loan Commitments) used to finance a Limited Condition Acquisition, the conditions set forth in subsection (a) of this Section that are providing tested as of the applicable LCA Test Date shall be certified in the applicable LCA Election Certificate instead of the certificate delivered pursuant to this subsection (iii); US-DOCS\151470090.12
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Commitments and/or the Incremental Term Loans, as applicable, and Schedule I shall automatically be deemed amended accordingly.
(d) If any Incremental Term Loan CommitmentCommitments are to be established pursuant to this Section, other than as set forth herein, all terms with respect thereto shall be as set forth in the applicable Incremental Commitment Joinder, the execution and delivery of which agreement shall be a condition to the effectiveness of the establishment of the Incremental Term Loan Commitments. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase in Commitments and/or establishment of a new Incremental Term Loan Commitment pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding sentence or the foregoing clause (a)(iv) of this Section, amendments to ensure pro rata allocations of SOFR Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) Any Incremental Commitment incurred pursuant to clause (a)(i)(A) above may be reclassified, as the Borrower elects by written notice to the Administrative Agent from time to time, as incurred under clause (a)(i)(B) above if the Borrower meets the applicable requirements set forth above under clause (a)(i)(B) at the time of such reclassification on a Pro Forma Basis.
(f) Unless otherwise elected by the Borrower, any Incremental Commitments shall be deemed to be incurred pursuant to clause (a)(i)(B) above (to the extent there is capacity under clause (a)(i)(B) above) prior to any such amounts being incurred under clause (a)(i)(A) above.
(g) This Section 2.23 shall supersede any provisions in Section 2.21 or 10.2 to the contrary.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) From time to time after the Closing Date and subject solely to the conditions set forth in this Section 2.23, the Borrower and one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments (each such increase, an “Incremental Commitment”, and the principal amount of each Incremental Commitment is referred to herein as the “Incremental Commitment Amount”), so long as the following conditions are satisfied:
(i) the aggregate principal amount of all Incremental Commitments established pursuant to this Section (the “Incremental Cap”) shall not exceed an amount equal to the sum of (A) $132,000,000 and (B) the maximum amount that would result in a Secured Net Leverage Ratio, on a pro forma basis (treating the amount of any Incremental Commitments extended on such date as fully funded, but excluding the cash proceeds of any Incremental Commitment Amounts or Incremental Equivalent Debt from cash and Permitted Investments) (and on a Pro Forma Basis if such Incremental Commitment is to be used to fund an Acquisition), of not more than 2.00:1.00 as of the most recently ended Fiscal Quarter for which financial statements shall have been delivered (or, if the Borrower at its sole discretion shall have provided the Administrative Agent with monthly financial statements for Parent and its Restricted Subsidiaries in form and substance reasonably satisfactory to the Administrative Agent, as of the most recently ended twelve month period); provided that, the aggregate principal amount of Incremental Equivalent Debt established after the Closing Date in reliance on clause (i)(A) above shall result in a dollar for dollar reduction in the amount of Incremental Commitments permitted to be established pursuant to clause (i)(A) of this Section. Unless the Borrower elects otherwise, each Incremental Commitment will be deemed incurred first under clause (i)(B) above to the extent permitted, with the balance incurred under clause (i)(A) above.
(ii) before and after giving effect to any proposed Incremental Commitment (determined, in the case of any Incremental Commitment that is to be used to fund a Limited Condition Acquisition, as of the LCA Test Date (other than the determination of whether any Event of Default under Section 8.1(a), 8.1(b), 8.1(h) or 8.1(i) exists or would result therefrom, which shall be determined as of the date such Limited Condition Acquisition is consummated)), no Default or Event of Default will have occurred and be continuing;
(iii) the representations and warranties in the Loan Documents will be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) at the time of and on the date of the incurrence of such Incremental Commitment (except to the extent that any such representation or warranty expressly relates to an earlier date, in which case such representation or warranty shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) as of such earlier date); provided that if such Incremental Commitment is to be used to fund a Limited Condition Acquisition, the condition set forth in this clause (iii) may be satisfied with (A) the accuracy of customary “specified representations” and “acquisition agreement representations” and (B) such other limitations or exceptions to representations and warranties as may be agreed by the lenders providing such Incremental Commitment;
(iv) after giving effect to any proposed Incremental Commitment (determined, in the case of any Incremental Commitment that is to be used to fund a Limited Condition Acquisition, as of the LCA Test Date), on a pro forma basis (treating the Incremental Commitments as fully funded, but excluding the cash proceeds of any Incremental Commitment Amounts or Incremental Equivalent Debt from cash and Permitted Investments), Parent and its Restricted Subsidiaries are in compliance with the Financial Covenants (on a Pro Forma Basis if such Incremental Commitment is to be used to fund an Acquisition), measuring clause (a) of the Secured Net Leverage Ratio as of the date such Incremental Commitment is to be established (or, in the case of a Limited Condition Acquisition, as of the LCA Test Date) and otherwise re-computing such covenant as of the last day of the most recently ended Fiscal Quarter for which financial statements shall have been delivered pursuant to Section 5.1(a) or 5.1(b) (or, if the Borrower at its sole discretion shall have provided the Administrative Agent with monthly financial statements for the Borrower and its Restricted Subsidiaries, re-computing such covenants as of the last day of the most recently ended twelve month period) as if such Incremental Commitment was established on the first day of the relevant period for testing compliance;
(v) [reserved];
(vi) [reserved];
(vii) any Incremental Commitments provided pursuant to this Section shall be on terms (including pricing and maturity but excluding upfront fees) and pursuant to documentation applicable to the Revolving Commitments outstanding immediately prior to such incurrence; and
(viii) (A) obligations in respect of any Incremental Commitments (1) shall constitute Obligations, (2) shall have the same guarantees as the Obligations and (3) shall rank pari passu in right of payment and security with the other Loans and (B) and all collateral securing any such Incremental Commitments shall also secure all other Obligations.
(b) The Borrower may, upon shall provide at least 10 daysBusiness Days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender)) of any proposal to establish an Incremental Commitment. The Borrower may also, propose but is not required to, specify any fees offered to those Lenders (ithe “Increasing Lenders”) increase either that agree to provide any Incremental Commitment, which fees may be variable based upon the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (amount any such incremental term loan commitment, an “Incremental Term Loan Commitment”) Lender is willing to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan provide. Each Increasing Lender shall have the right for a period of as soon as practicable, and in any case within 5 Business Days following receipt of such notice, to elect by specify in a written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional such proposed Incremental Commitment Amount in the case of a request that it is willing to increase the Aggregate Revolving Commitments.
(d) provide. No Lender (or any successor thereto) shall have any obligation obligation, express or implied, to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an any portion of any requested Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an any portion of any such Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required to establish an Incremental Commitment pursuant to this Section. No Lender that declines to provide any requested Incremental Commitment may be replaced with respect to any of its existing Commitments or Loans as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will provide any Incremental Commitment within 5 Business Days after receipt of such notice, such Lender shall be deemed to have declined to do so. The Borrower may accept some or all of the amounts offered by existing Lenders or may designate new lenders (subject to the restrictions set forth in Section 10.4, as if such Loans were being acquired via assignment) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment and such Additional Lenders shall be acceptable to the Administrative Agent (such approval not to be unreasonably withheld). The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of any Incremental Commitments among the Increasing Lenders and the Additional Lenders. The sum of the portion of any proposed Incremental Commitment that is to be provided by Increasing Lenders plus the portion of such Incremental Commitment that is to be provided by Additional Lenders shall not, in the aggregate, exceed the proposed Incremental Commitment Amount.
(ec) An increase in Subject to subsections (a) and (b) of this Section, any Incremental Commitment requested by the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 Borrower shall become be effective upon the receipt by delivery to the Administrative Agent of a supplement each of the following documents:
(i) an executed copy of an instrument of joinder or joinder amendment, in form and substance reasonably satisfactory acceptable to the Administrative Agent Agent, executed by the Borrower and by Borrower, each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increasedIncreasing Lender, setting forth the new Revolving Commitments or the such Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:;
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a)the extent reasonably required by the Administrative Agent after consultation with the Borrower, (b), (h), (i) or (j)) shall have occurred legal opinions and be continuing at the time such Limited Condition Acquisition is consummatedauthorizing resolutions, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date each case, with respect to such Limited Condition Acquisition Incremental Commitment and (y) no Default consistent with those delivered on the Closing Date, other than changes to such legal opinions resulting from a change in law or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; andchange in fact;
(iii) provides that the only representations and warranties the making a certificate of which shall be Parent signed by a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business DaysResponsible Officer, in the case of any Base Rate Loans then outstanding, form and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner substance reasonably acceptable to the Administrative Agent, so thatcertifying that each of the conditions in subsection (a) of this Section has been satisfied; and
(iv) to the extent requested by any Additional Lender or any Increasing Lender, after giving effect theretoexecuted promissory notes evidencing such Incremental Commitment, the Loans of such Lenders are held ratably issued by the Lenders of such Class Borrower in accordance with Section 2.10. Upon the respective effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of such Class of such Lenders (after giving each Lender will be adjusted, as applicable, to give effect to such Additional Commitment Amount)Incremental Commitment, and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding Schedule I shall automatically be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitmentsdeemed amended accordingly.
(hd) The Additional Lenders or existing Lenders providing an If the Borrower incurs Incremental Term Loan Commitment Commitments under this Section, the Borrower shall, after such time, repay and incur Revolving Loans ratably as between the Incremental Commitments and the Revolving Commitments outstanding immediately prior to such incurrence and no amounts shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created payable by the Loans Documents, except that such Incremental Term Loans may be subordinated Borrower pursuant to Section 2.19 in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, connection therewith. Notwithstanding anything to the extent set forth contrary in an amendment to this Agreement as mutually agreed by the BorrowerSection 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata allocations of SOFR Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Incremental Commitments and the Additional Lenders or Revolving Commitments outstanding immediately prior to any such other Lenders, in each case who are providing such Incremental Term Loan Commitmentincurrence).
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, the Borrower may, upon at least 10 days’ by written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Senior Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, to an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 125,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
(b) In . At the case election of a request to increase the Aggregate Revolving CommitmentsBorrower, if specified in such notice, each Revolving Loan Lender shall have the right for a period of 5 15 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Senior Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Senior Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Senior Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In If the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Borrower elected to not offer each Lender shall not the right to elect to increase its Senior Revolving Commitment pursuant to subsection (a) of this Section 2.242.21, or if any Lender shall not make such election, the Borrower may accept from any Lender or Lenders, on a non-pro rata basis, an increase in its or their Senior Revolving Commitment or may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is not an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person Lender (an “Additional Lender”), which at the time agrees ) to become a party to this AgreementAgreement and make a Senior Revolving Commitment, in each case if not already a Lendersuch Lender or Additional Lender at the time agrees to; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Senior Revolving Commitments of the existing Lenders pursuant to subsection
(a) if applicable, and this subsection (cb) plus the Senior Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Senior Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.21 shall become effective upon the receipt by the Administrative Agent of a an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Senior Revolving Commitment is to be increased, setting forth the new Senior Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other together with Senior Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Credit Notes evidencing such increase in the Senior Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentCommitments, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Senior Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Senior Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, the Aggregate Senior Revolving Commitment Amount shall automatically be increased by the amount of the Senior Revolving Commitments added through such agreement supplement or joinder and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Senior Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Senior Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Senior Revolving Commitments pursuant to this Section 2.24 2.21 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Senior Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Senior Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Sources: Revolving Credit Agreement (NGP Capital Resources Co)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date but before the termination of this Agreement and in accordance with this Section, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments and/or the aggregate Term Loan Commitments hereunder (each such increase, upon at least 10 days’ written notice an “Incremental Commitment”) so long as the following conditions are satisfied:
(or i) the aggregate principal amount of all such shorter period Incremental Commitments made pursuant to this Section shall not exceed $200,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) (A) the conditions precedent in Section 3.2 shall be satisfied and (B) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, (A) no Default or Event of Default shall have occurred and be continuing and exist, (B) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on ); provided, that to the extent such representation or warranty relates to a specific prior date, except for representations and warranties that expressly relate to an earlier date, which such representation or warranty shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects, as applicable) only as of such specific prior date and (C) since December 31, 2013, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) any incremental Term Loans made pursuant to this Section (the “Incremental Term Loans”) shall have a maturity date no earlier datethan the Maturity Date and shall have a Weighted Average Life to Maturity no shorter than that of the Term Loans made pursuant to Section 2.6, and (y) any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have a termination date no earlier than the Revolving Commitment Termination Date;
(v) the Borrower and its Subsidiaries shall be in compliance on a pro forma basis with each of the financial covenants set forth in Article VI after giving effect to any such Incremental Term Loan and/or any such Incremental Revolving Commitment (assuming that it is fully funded);
(vi) if the Initial Yield applicable to any such Incremental Term Loans exceeds the sum of the Applicable Margin then in effect for Eurodollar Term Loans plus one fourth of the Up-Front Fees paid in respect of the existing Term Loans (the “Existing Yield”), then the Applicable Margin of the existing Term Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield and (y) except as permitted in clause (x) above, the Incremental Term Loans shall be on the same terms and conditions as the existing Term Loans; provided that, solely and
(vii) the Incremental Revolving Commitments shall be deemed part of and shall have the same terms and conditions in all respects as the existing Revolving Commitments other than with respect to the establishment payment of Up-Front Fees;
(viii) all other terms and conditions with respect to any such Incremental Commitments shall be reasonably satisfactory to the Administrative Agent.
(b) The Borrower shall provide at least five Business Days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or their Term Loan Commitments entered into in connection with Commitments, which fees may be variable based upon the financing amount by which any such Lender is willing to increase the principal amount of a Limited Condition Acquisition, the Lenders providing such Incremental its Revolving Commitment and/or its Term Loan Commitments may agree Commitment, as applicable. Each Increasing Lender shall as soon as practicable specify in a written notice to a “funds certain provision” that:
the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)successor thereto) shall have occurred any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or its Term Loan Commitment, and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition any decision by a Lender to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which increase its Revolving Commitment and/or its Term Loan Commitment shall be a condition to funding thereof made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target required for an increase in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the aggregate principal amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect and/or the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or its Term Loan Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicable, as a result thereof without such Lender’s consent. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments and the Term Loan Commitments of the Increasing Lenders plus the Revolving Commitments and the Term Loan Commitments of the Additional Lenders shall make not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and receive payments among themselves(b) of this Section, any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in a manner form and substance reasonably acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Commitments and/or new Term Loan Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent and may reasonably request;
(iii) a certificate of the Additional Lenders or such other LendersBorrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each case who are providing of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loan Loans, issued by the Borrower in accordance with Section 2.11(b); and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent.
(d) The Incremental Term Loans and Incremental Revolving Commitments shall have the same terms as the Term Loans and the Revolving Commitments, as applicable. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments and/or the Incremental Term Loans, as applicable, and Schedule 1.1(b) shall automatically be deemed amended accordingly.
(e) For purposes of this Section, the following terms shall have the meanings specified below:
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Aaron's Inc)
Increase of Commitments; Additional Lenders. (a) The Borrower mayFrom time to time after the Closing Date and in accordance with this Section, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish Borrowers and one or more incremental term loan commitments Increasing Lenders or Additional Lenders (any such incremental term loan commitment, each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments and/or make new Term Loan Commitments (each an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio following conditions are satisfied:
(determined (1i) after giving effect the aggregate principal amount of all such Incremental Commitments made pursuant to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with this Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) exceed $100,000,000 (the principal amount of any each such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)Incremental Commitment, the “Additional Incremental Commitment Amount”).;
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b)and, (h)since December 31, (i) or (j)) 2015, there shall have occurred and been no change which has had or could reasonably be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition expected to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; anda Material Adverse Effect;
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties any incremental Term Loans made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 (the “Incremental Term Loans”) shall have a maturity date no earlier than the Maturity Date and shall have a Weighted Average Life to Maturity no shorter than that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Term Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, made pursuant to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount)Section 2.5, and (y) effective upon such increase, any incremental Revolving Commitments provided pursuant to this Section (the amount “Incremental Revolving Commitments”) shall have a termination date no earlier than the Revolving Commitment Termination Date;
(iv) the Borrowers and their Subsidiaries shall be in pro forma compliance with each of the participations held by each Revolving Loan Lender financial covenants set forth in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination Article VI as of the Required Lenders and such Lenders will not constitute a separate voting class most recently ended Fiscal Quarter for any purposes under this Agreement. Any Incremental Term Loans shall be entitled which financial statements are required to have been delivered, calculated as if all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing had been made and all such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to Revolving Commitments had been established (and fully funded) as of the extent set forth in an amendment to this Agreement as mutually agreed by first day of the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.relevant period for testing compliance;
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Fox Factory Holding Corp)
Increase of Commitments; Additional Lenders. (a) The Borrower mayFrom time to time after the Closing Date and in accordance with this Section, upon at least 10 days’ written notice the Borrowers and one or more Increasing Lenders or Additional Lenders (or each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments and/or the aggregate Tranche A Term Loan Commitments hereunder (each such shorter period increase, an “Incremental Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed (x) $25,000,000 (such Incremental Commitments, “Tranche B Replacement Commitments”) plus (y) solely after the full amount of all Tranche B Replacement Commitments have been made, $40,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrowers shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and, since December 31, 2013, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) on such date(x) any incremental Tranche A Term Loan made pursuant to this Section (collectively, except for representations the “Incremental Term Loans”) that is a Tranche B Replacement Commitment shall have a maturity date that is the Maturity Date and warranties shall have the same Weighted Average Life to Maturity as the Tranche A Term Loans made pursuant to Section 2.5(a), (y) any Incremental Term Loan that expressly relate is not a Tranche B Replacement Commitment shall have a maturity date no earlier than the Maturity Date and shall have a Weighted Average Life to an earlier dateMaturity no shorter than that of the Tranche A Term Loans made pursuant to Section 2.5(a), which and (z) any incremental Revolving Commitment provided pursuant to this Section (collectively, the “Incremental Revolving Commitments”) shall have a termination date of the Revolving Commitment Termination Date;
(v) Holdings and its Subsidiaries shall be true in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such Incremental Term Loans had been made and correct all such Incremental Revolving Commitments had been established (and fully funded) as of the first day of the relevant period for testing compliance;
(vi) if the Initial Yield applicable to any such Incremental Term Loan or any such Incremental Revolving Commitment exceeds by more than 0.50% per annum the sum of the Applicable Margin then in all material respects (effect for Eurodollar Tranche A Term Loans or in all respectsEurodollar Revolving Loans, as applicable, plus one fourth of the Up-Front Fees paid in respect of the existing Tranche A Term Loans or the existing Revolving Commitments, as applicable (the “Existing Yield”), then the Applicable Margin of the existing Tranche A Term Loans or the existing Revolving Loans, as applicable, shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum;
(vii) any collateral securing any such Incremental Commitments shall also secure all other Obligations on a pari passu basis; and
(viii) (x) all other terms and conditions with respect to any Incremental Term Loans that are not Tranche B Replacement Commitments shall be consistent with the terms and conditions of the Tranche A Term Loans made pursuant to Section 2.5(a) or otherwise reasonably satisfactory to the Administrative Agent, (y) all other terms and conditions (including the Applicable Margin) with respect to any Incremental Term Loans that are Tranche B Replacement Commitments shall be the same as the terms and conditions of such earlier datethe Tranche A Term Loans made pursuant to Section 2.5(a) and (z) all other terms and conditions (including the Applicable Margin) with respect to any Incremental Revolving Commitments shall be the same as the terms and conditions of the existing Revolving Commitments; provided that, solely that any upfront fees paid with respect to such Incremental Revolving Commitments may be greater than the upfront fees paid with respect to the establishment existing Revolving Commitments.
(b) The Borrowers shall provide at least 30 days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. The Borrowers may also, but are not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or their Tranche A Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or its Tranche A Term Loan Commitment, as applicable. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrowers and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or its Tranche A Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment and/or its Tranche A Term Loan Commitment shall be made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments and/or the Tranche A Term Loan Commitments, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or its Tranche A Term Loan Commitment may be replaced with respect to its existing Revolving Commitment and/or its Tranche A Term Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrowers and the Administrative Agent in writing about whether it will increase its Revolving Commitment and/or its Tranche A Term Loan Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment and/or its Tranche A Term Loan Commitment, as applicable. The Borrowers may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrowers and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments and the Tranche A Term Loan Commitments entered into of the Increasing Lenders plus the Revolving Commitments and the Tranche A Term Loan Commitments of the Additional Lenders shall not in connection the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any increase requested by the Borrowers shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, executed by the Borrowers, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Commitments and/or new Tranche A Term Loan Commitments, as applicable, of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate organizational authorization on the part of the Borrowers with respect to such Incremental Commitment and such opinions of counsel for the financing Borrowers with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrowers signed by a Limited Condition AcquisitionResponsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans, issued by the Borrowers in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments and/or the Incremental Term Loans, as applicable, and Schedule I shall automatically be deemed amended accordingly.
(d) If any Incremental Term Loans that are not Tranche B Replacement Commitments are to have terms that are different from the Tranche A Term Loans outstanding immediately prior to such incurrence (any such Incremental Term Loans, the “Non-Conforming Credit Extensions”), all such terms shall be as set forth in a separate assumption agreement among the Borrowers, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a)Loans and the Administrative Agent, (b), (h), (i) or (j)) shall have occurred the execution and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making delivery of which agreement shall be a condition to funding thereof the effectiveness of the Non-Conforming Credit Extensions. The scheduled principal payments on the Term Loans to be made pursuant to Section 2.9 shall be ratably increased after the making of any Incremental Term Loans (xother than Term Loans that are Non-Conforming Credit Extensions) certain “specified representations” agreed to under this Section by the Lenders providing aggregate principal amount of such Incremental Term Loans. After the incurrence of any Non-Conforming Credit Extensions, all optional prepayments of Term Loans shall be allocated ratably between the then-outstanding Term Loans and such Non-Conforming Credit Extensions. If the Borrowers incur Incremental Revolving Commitments under this Section, the Borrowers shall, after such time, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and (y) the representations and warranties made by or with respect Revolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the applicable target contrary in Section 10.2, the Limited Condition Acquisition Agreement that are material Administrative Agent is expressly permitted to amend the interests of the Lenders, but only Loan Documents to the extent that necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the Borrower (or requirements in the preceding two sentences, amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of its Restricted Subsidiaries) has Credit between the right Non-Conforming Credit Extensions consisting of Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to terminate the Borrower’s (or any such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warrantiesincurrence).
(fe) Upon the acceptance For purposes of any such agreement by the Administrative Agentthis Section, the Aggregate Revolving Commitment Amount following terms shall automatically be increased by have the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions meanings specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.below:
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Dakota Plains Holdings, Inc.)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Initial Availability Date, the Borrower may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide Agent, elect to increase the Revolving Credit Commitment Amount up to a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate total amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred 1,000,000,000 at any time in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the The Borrower may designate another bank one or more banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) which at the time agrees agree to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution that is not an existing Lender must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.14 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Joinder Agreement signed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and together with such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Credit Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II the Commitment amounts of each Lender set forth on the signature pages hereto shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitmentsbe updated.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.14 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such all outstanding Loans in their entirety entirety, together with any breakage fees and funding losses that are required to be paid pursuant to Section 2.11, and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3IV, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in the proportion to their its respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, bears to the extent set forth in an amendment aggregate Commitments after giving effect to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitmentincrease.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower may, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish and one or more incremental Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments and/or make term loan commitments hereunder (any each such incremental increase or term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) following conditions are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).satisfied:
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (iiA) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined unless otherwise agreed by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, Borrower may not deliver more than four (4) requests for Incremental Commitments during the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits term of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of and each Incremental Term Loan Commitments Commitment pursuant to this Section 2.24 shall be subject toin an amount not less than $10,000,000, and (B) the aggregate principal amount of all such Incremental Commitments made pursuant to this Section shall not exceed $50,000,000 (the principal amount of each such Incremental Commitment, the “Incremental Commitment Amount”);
(ii) the Borrower shall execute and deliver such documents and instruments and take such other actions as may be reasonably required by the Administrative Agent in connection with and at the time of any such proposed increase;
(iii) at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, (A) no Default or Event of Default shall have occurred exist, and be continuing and (B) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects);
(iv) on such date, except for representations any incremental term loans made pursuant to this Section (the “Incremental Term Loans”) shall have a maturity date no earlier than the Maturity Date;
(v) any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have the same terms and warranties that expressly relate to an earlier date, which conditions as the existing Revolving Commitments hereunder including the Revolving Commitment Termination Date and Applicable Margin;
(vi) Parent and its Subsidiaries shall be true in compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated on a Pro Forma Basis and correct in as if all material respects such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (or in all respects, as applicableand fully funded) as of the first day of the relevant period for testing compliance;
(vii) if the Initial Yield applicable to any such earlier date; provided thatIncremental Term Loans exceeds by more than 0.50% per annum the sum of the Applicable Margin then in effect for existing Eurodollar Incremental Term Loans plus one fourth of the Up-Front Fees paid in respect of the existing Incremental Term Loans (the “Existing Yield”), solely then the Applicable Margin of the existing Incremental Term Loans shall increase by an amount equal to the difference between the Initial Yield and the Existing Yield minus 0.50% per annum;
(viii) any collateral securing any such Incremental Commitments and Incremental Term Loans shall also secure all other Obligations on a pari passu basis;
(ix) the scheduled amortization installments with respect to any Incremental Term Loans may not be more frequent than quarterly and the establishment aggregate annual amount of scheduled amortization with respect to any Incremental Term Loans may not exceed 10% of the original principal amount of such Incremental Term Loans (it being understood that, subject to this clause (viii), the amortization schedule applicable to (and the effect thereon of any prepayments of) any Incremental Term Loans shall be determined by the Borrower and the applicable Increasing Lenders;
(x) covenants and events of default applicable to any Incremental Term Loan commitments or Incremental Term Loan shall be identical to those applicable to the Revolving Commitments entered into and the Revolving Loans, other than any such covenants and events of default applicable after the Maturity Date in connection with effect on the financing date of a Limited Condition Acquisition, the Lenders providing incurrence of such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummatedLoans; and
(iiixi) provides that except for the only representations terms referred to above and warranties the making of which shall be a condition otherwise subject to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lendersthis Section 2.23, but only to the extent that the Borrower terms and conditions of any Incremental Term Loans (other than interest rates (whether fixed or any floating), interest margins, benchmark rate floors, upfront fees, original issue discounts and prepayment terms (including “no call” terms and other restrictions thereon) and premiums) are not consistent with those of its Restricted Subsidiaries) has the right Revolving Loans, such differences shall be acceptable to terminate the Borrower’s Administrative Agent (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties acceptance not to be true and correct unreasonably withheld or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warrantiesdelayed).
(fb) Upon The Borrower shall provide at least 30 days’ written notice to the acceptance Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or provide Incremental Term Loans, which fees may be variable based upon the amount by which any such agreement by Lender is willing to increase the principal amount of its Revolving Commitment and/or provide Incremental Term Loans, as applicable. Each Increasing Lender shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative AgentAgent the amount of such proposed Incremental Commitment and/or Incremental Term Loans that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the Aggregate aggregate principal amount of its Revolving Commitment Amount and/or provide Incremental Term Loans, and any decision by a Lender to increase its Revolving Commitment and/or provide Incremental Term Loans shall automatically be increased by made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments added through and/or the providing of Incremental Term Loans, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or provide Incremental Term Loans may be replaced with respect to its existing Revolving Commitment and/or any existing Incremental Term Loans, as applicable, as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment and/or provide Incremental Term Loans within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment and/or provide Incremental Term Loans, as applicable. The Borrower may designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment; provided, that none of Parent, its Subsidiaries, or its Affiliates shall be an Additional Lender. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Revolving Commitments and the Incremental Term Loans of the Increasing Lenders plus the Revolving Commitments and the Incremental Term Loans of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, executed by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Commitments and/or new Incremental Term Loan commitments, as applicable, of such Lenders, the new outstanding LC Commitment (if applicable), and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Revolving Commitments and/or the Incremental Term Loans, as applicable, the LC Commitment will be increased automatically (if applicable), and Schedule II shall automatically be deemed amended to reflect accordingly.
(d) All terms of the initial Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect advanced hereunder and any other Incremental Term Loans that are different from the terms outstanding under the Credit Agreement immediately prior to the addition incurrence of such Incremental Term Loans (any such initial Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstandingother Incremental Term Loans, the Borrower “Non-Conforming Credit Extensions”) shall prepay such Loans be as set forth in their entirety and, to a separate assumption agreement among the extent the Borrower elects to do so and subject to the conditions specified in Article 3Borrower, the Borrower shall reborrow the Revolving Lenders providing such Incremental Term Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans execution and delivery of such Lenders are held ratably by which agreement shall be a condition to the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount effectiveness of the participations held by each Revolving Loan Lender in each Letter of Non-Conforming Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) Extensions. The Additional Lenders or scheduled principal payments on any existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all ratably increased after the benefits afforded by, making of any new Incremental Term Loans (other than Incremental Term Loans that are Non-Conforming Credit Extensions) under this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created Section by the Loans Documents, except that aggregate principal amount of such Incremental Term Loans may be subordinated in right Loans. After the incurrence of paymentany Non-Conforming Credit Extensions, the Liens securing such all optional prepayments of Incremental Term Loans may shall be subordinated or such allocated ratably between the then-outstanding Incremental Term Loans may be unsecured, in each case, and such Non-Conforming Credit Extensions. Notwithstanding anything to the extent set forth contrary in an amendment to this Agreement as mutually agreed by the BorrowerSection 10.2, the Administrative Agent is expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase pursuant to this Section and changes necessary or advisable in connection therewith (including amendments to (i) implement the Additional Lenders or requirements in the preceding two sentences, (ii) ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such other Lendersincurrence, in each case who are providing such (iii) provide optional and mandatory prepayments for any Incremental Term Loan CommitmentLoans, and (iv) reflect any maturity date after the Maturity Date (including, without limitation, amendments to any provisions of this Credit Agreement affected by such later maturity date).
(e) For purposes of this Section, the following terms shall have the meanings specified below:
Appears in 1 contract
Sources: Credit Agreement (LendingTree, Inc.)
Increase of Commitments; Additional Lenders. (a) The Borrower maySo long as no Event of Default has occurred and is continuing, from time to time after the Effective Date and upon at least 10 20 days’ written notice to the Administrative Agent (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lenderand Company may agree), propose the Company may elect to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) Credit Commitment Amount up to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate a total amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred 1,500,000,000 at any time in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”)effect.
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower The Company may designate another bank one or more banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) which at the time agrees agree to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution that is not an existing Lender must be acceptable to the Administrative Agent, the Swingline Lender and/or the Issuing Banks (in each case, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum ) if the consent of the increases in Administrative Agent, the Revolving Commitments of Swingline Lender or the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in Issuing Banks, as the case of a request may be, would be required to increase the Aggregate Revolving Commitments.
(d) effect an assignment under Section 10.10(b). No Lender (or any successor thereto) shall have any obligation whatsoever to agree to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.14 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Joinder Agreement signed by the Borrower and Company, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and together with such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors Company with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors Company with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Credit Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II the Commitment amounts of each Lender set forth on the signature pages hereto shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitmentsbe updated.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.14 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Daysthe Borrowers, in the case of any Base Rate Loans then outstanding, Administrative Agent and at the end Lenders shall as of the then current month with respect thereto, in the case effective date of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, increase make adjustments to the extent the Borrower elects outstanding principal amount of Revolving Loans (but not any interest accrued thereon or any accrued fees prior to do so and such date), including, subject to the conditions specified in Article 3Section 4.2, the Borrower shall reborrow the borrowing of additional Revolving Loans from hereunder and the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding repayment of Revolving Loans are held plus all applicable accrued interest, fees and expenses as shall be necessary to provide for Revolving Loans by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided , together with any breakage fees and funding losses that with respect are required to this subclause (x), (A) the prepayment tobe paid pursuant to Section 2.11, and borrowing from, any existing each Lender shall be effected by book entry deemed to the extent that any portion have made an assignment of its outstanding Revolving Loans and Commitment, and assumed outstanding Revolving Loans and Commitments of other Lenders as of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans effective date of such Lenders are held ratably by increase as may be necessary to effect the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount)foregoing, and (y) effective upon such increase, the amount of the unfunded participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold unfunded participations in each such Letter of Credit in the proportion to their its respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, bears to the extent set forth in an amendment aggregate Commitments after giving effect to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitmentincrease.
Appears in 1 contract
Sources: Revolving Credit Agreement (Noble Corp / Switzerland)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower mayand one or more Increasing Lenders or Additional Lenders (each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such increase, upon at least 10 days’ written notice an “Incremental Commitment”) so long as the following conditions are satisfied:
(or i) the aggregate principal amount of all the Aggregate Revolving Commitments shall not exceed $275,000,000 (the “Maximum Commitment Amount”) after any incremental increase hereunder;
(ii) the Borrower shall execute and deliver such shorter period documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing and exist, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materialitymateriality qualifier, in which case such representations and warranties shall be true and correct in all respects), and, since the Closing Date, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) on such date, except for representations any Incremental Commitments provided pursuant to this Section shall have a termination date no earlier than the Revolving Commitment Termination Date;
(v) the Borrower and warranties that expressly relate to an earlier date, which its Subsidiaries shall be true in pro forma compliance with each of the Financial Covenants as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, calculated as if all such Incremental Commitments had been established (and correct in all material respects (or in all respects, as applicablefully funded) as of such earlier date; provided that, solely with respect to the establishment first day of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummatedrelevant period for testing compliance; and
(iiivi) provides that the only representations all other terms and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or conditions with respect to the applicable target in the Limited Condition Acquisition Agreement that are material any such Incremental Commitments shall be reasonably satisfactory to the interests of the Lenders, but only Administrative Agent.
(b) The Borrower shall provide at least 30 days’ written notice to the extent Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. Each Lender that agrees to increase the principal amount of its Revolving Commitment (an “Increasing Lender”) shall as soon as practicable, and in any case within 15 days following receipt of such notice, specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Incremental Commitment that it is willing to provide. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Restricted Subsidiaries) has the right Revolving Commitment, and any decision by a Lender to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate increase its Revolving Commitment Amount shall automatically be increased by made in its sole discretion independently from any other Lender. Only the amount consent of the Revolving Commitments added through such agreement and Schedule II each Increasing Lender shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any required for an increase in the aggregate principal amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Section. No Lender which declines to increase the principal amount of its Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that Commitment may be replaced with respect to this subclause (x)its existing Revolving Commitment as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice, (A) the prepayment to, and borrowing from, any existing such Lender shall be effected by book entry deemed to have declined to increase its Revolving Commitment. The Borrower may accept some or all of the offered amounts or designate new lenders that are acceptable to the extent that any Administrative Agent as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower and the amount prepaid Administrative Agent shall have discretion jointly to adjust the allocation of such Lender will be subsequently borrowed from such Lender Incremental Commitments among the Increasing Lenders and (B) the Additional Lenders. The sum of the Aggregate Revolving Commitments of the existing Lenders plus the increase in the Revolving Loan Lenders, as applicable, and Commitments of the Increasing Lenders plus the Revolving Commitments of the Additional Lenders shall make not in the aggregate exceed the Maximum Commitment Amount.
(c) Subject to subsections (a) and receive payments among themselves(b) of this Section, any increase requested by the Borrower shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in a manner form and substance reasonably acceptable to the Administrative Agent, so that, after giving effect theretoexecuted by the Administrative Agent, the Loans Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Revolving Commitments of such Lenders are held ratably and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in clauses (i), (iii) and (v) of subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Commitments issued by the Lenders of such Class Borrower in accordance with Section 2.10(b); and
(v) any other certificates or documents that the respective Commitments of such Class of such Lenders (after giving effect Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving CommitmentsAdministrative Agent.
(hd) The Additional Lenders or existing Lenders providing an Upon the effectiveness of any such Incremental Term Loan Commitment Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Commitments and Schedule I shall automatically be deemed amended accordingly.
(e) If any Incremental Commitments are to have terms that are different from the Revolving Commitments, as applicable, outstanding immediately prior to such incurrence (any such Incremental Commitments, the “Non-Conforming Credit Extensions”), all such terms shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent as set forth in an amendment to this Agreement as mutually agreed by a separate assumption agreement among the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Commitments and the Administrative Agent, the execution and delivery of which agreement shall be a condition to the effectiveness of the Non-Conforming Credit Extensions. If the Borrower incurs Incremental Commitments under this Section, regardless of whether such Incremental Commitments are Non-Conforming Credit Extensions, the Borrower shall, after such time, repay and incur Revolving Loans ratably as between the Incremental Commitments and the Revolving Commitments outstanding immediately prior to such incurrence. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent is expressly permitted to amend the Loan CommitmentDocuments to the extent necessary to give effect to any increase pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding two sentences, amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Non-Conforming Credit Extensions consisting of Incremental Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 10 30 days’ ' written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, to an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 625,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “"Additional Commitment Amount”").
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan . Each Lender shall have the right for a period of 5 Business Days 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.242.21, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “"Additional Lender”"), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.21 shall become effective upon the receipt by the Administrative Agent of a an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving together with Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentCommitments, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.21 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Sources: Revolving Credit Agreement (Northern Border Partners Lp)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower may, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish and one or more incremental term loan commitments Increasing Lenders or Additional Lenders (any each as defined below) may enter into an agreement to increase the aggregate Revolving Commitments hereunder (each such incremental term loan commitmentincrease, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio following conditions are satisfied:
(determined (1i) after giving effect the aggregate principal amount of all such Incremental Commitments made pursuant to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with this Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) exceed $75,000,000 (the principal amount of any each such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)Incremental Commitment, the “Additional Incremental Commitment Amount”).;
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, no Default or Event of Default shall have occurred and be continuing exist and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by made as of a Material Adverse Effect or other materialityspecific date, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:);
(iiiii) does not impose as a condition any Incremental Commitments provided pursuant to funding thereof that no Default or Event of Default (other than any Default or Event of Default under this Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at a termination date no earlier than the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummatedRevolving Commitment Termination Date; and
(iiiiv) provides that the only representations and warranties the making of which Loan Parties shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or in pro forma compliance with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests each of the Lendersfinancial covenants set forth in Article VI as of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered, but only to calculated as if all such Incremental Commitments had been established (and fully funded) as of the extent that first day of the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).relevant period for testing compliance..
(fb) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the The Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable provide at least 30 days’ written notice to the Administrative Agent, so that, after giving effect thereto, the Loans Agent (who shall promptly provide a copy of such Lenders are held ratably by the Lenders notice to each Lender) of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect any proposal to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.establish an
Appears in 1 contract
Sources: First Lien Credit Agreement (Magnum Hunter Resources Corp)
Increase of Commitments; Additional Lenders. (a) The Borrower So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers may, upon at least 10 ten (10) days’ written notice (or such shorter period of time as may be permitted by the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate U.S. Revolving Commitments or and/or the Aggregate Global Revolving Commitments (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Revolving Commitment”) to make an incremental term loan (any such incremental term loan, ” or an “Incremental Term LoanFacility”), by an ; provided that the aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate all Incremental Revolving Commitments or such Incremental Term Loan is incurred shall not exceed $100,000,000 in connection with a Permitted Acquisition or other Investments permitted by the aggregate over the term of this Agreement, . No Lender shall have any amounts (which for purposes of clarity, do not include obligation to extend any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”)Facility.
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower The Borrowers may designate another a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees toto extend such Incremental Facility (each, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lenderextend such Incremental Facility; provided, provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection .
(c) plus In the case of each Incremental Revolving Commitment:
(i) such Incremental Revolving Commitment shall have the same terms as the relevant existing Revolving Commitments of being increased (other than any initial upfront fees paid to the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate extending such Incremental Revolving Commitments.Commitment); and
(dii) No Lender (or any successor thereto) shall have any obligation to increase its the outstanding Revolving Commitment or its other obligations under this Agreement Loans and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall Pro Rata Share of L/C Obligations will be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt reallocated by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to on the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such applicable increase in effective date among the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and Lenders (including the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
Revolving Commitment) in accordance with their revised Pro Rata Shares (ii) does not impose as a condition to funding thereof that no Default or Event of Default and the Revolving Lenders (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at including the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Additional Lenders providing such Commitments Incremental Revolving Commitment) agree to make all payments and (y) adjustments necessary to effect such reallocation and the representations Borrowers shall pay any and warranties made by or all costs required pursuant to Section 2.18 in connection with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under reallocation as if such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as reallocation were a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warrantiesrepayment).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, the Borrower may, upon at least 10 20 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Term Loan Lender or Revolving Loan Lender, as applicable), propose to (i) increase either the aggregate Term Loan Commitments or the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed $50,000,000 in the sum aggregate (and in minimum increments of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)10,000,000) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
, but in any event, no more than four (b4) In such elections shall be made during the case term of a request to increase the Aggregate Revolving Commitments, each this Agreement. Each Term Loan Lender or Revolving Loan Lender Lender, as applicable, shall have the right for a period of 5 Business Days 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Term Loan Commitment or Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC its Term Loan Commitment or Revolving Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Term Loan Commitment or Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Term Loan Commitment or Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Term Loan Commitment or provide an Incremental Term Loan Revolving Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Term Loan Lender or Revolving Loan Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in either of the Term Loan Commitments or Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Term Loan Commitments or Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Term Loan Commitments or the establishment of Incremental Term Loan Revolving Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Term Loan Commitment or Revolving Commitment is to be increased, setting forth the new Revolving Term Loan Commitments or the Incremental Term Loan Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Term Loan Commitment or Revolving Commitment is to be increased, Revolving Notes or Term Notes evidencing such increase in the Revolving Term Loan Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Revolving Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Term Loan Commitments or the incurrence of the Incremental Term Loan Revolving Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Term Loan Commitments or the incurrence of the Incremental Term Loan Revolving Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Term Loans or Aggregate Revolving Commitment Amount Amount, as applicable, shall automatically be increased by the amount of the Term Loan Commitments or Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Term Loan Commitments or Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Term Loan Lenders or Revolving Loan Lenders in proportion to their respective Term Loan Commitments or Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Term Loan Lenders or existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(hf) The Additional Lenders or existing Lenders providing an Incremental Principal payments with respect to any Term Loan Commitment Loans made pursuant to this Section 2.24 shall be included due and payable on the same dates on which payments are required to be made pursuant to Section 2.10(c), and in any determination such amounts as shall be required to ensure that the weighted average life to maturity shall be equal to the weighted average life to maturity of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental original Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan CommitmentLoans.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Strayer Education Inc)
Increase of Commitments; Additional Lenders. (a) The Borrower may, upon at least 10 15 days’ ' written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), from time to time propose to (i) increase either the Aggregate Revolving Commitments (the amount of any such increase, the “Additional Revolving Commitment Amount”) or (ii) establish one or more incremental term loan commitments increase the Aggregate Term Commitments (the amount of any such incremental term loan commitmentincrease, an the “Incremental Additional Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term LoanCommitment Amount”), by an aggregate amount for clauses (i) and (ii) not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate 300,000,000; provided that each Additional Revolving Commitments Commitment Amount or such Incremental Additional Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which Commitment Amount shall be in minimum increments a principal amount of not less than $10,000,000 or larger multiple of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan 5,000,000. Each Lender shall have the right for a period of 5 Business Days 10 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment or Term Commitment by a principal amount equal to its Pro Rata Share of the Additional Revolving Commitment Amount or its Pro Rata Share of the Additional Term Commitment Amount. No Any Lender who does not respond within such increase in the Aggregate Revolving Commitments 10 day period shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall be deemed to have elected not elect to increase its Revolving Commitment or Term Commitment. No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or Term Commitment or its other obligations under this Agreement and the other Loan Documents, and any decision by a Lender to increase its Revolving Commitment or Term Commitment shall be made in its sole discretion independently from any other Lender.
(b) If any Lender shall elect not to increase its Revolving Commitment or Term Commitment pursuant to subsection paragraph (a) of this Section 2.242.21, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative AgentAgent and in the case of an Additional Revolving Commitment Amount, the Swing Line Lender and each Issuer, which acceptance in each case will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection paragraph (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Revolving Commitment Amount Amount. The sum of the increases in the case Term Commitments of a request the existing Lenders pursuant to increase this paragraph (b) plus the Aggregate Revolving CommitmentsTerm Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Term Commitment Amount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.21 shall be subject to the conditions set forth in paragraph (d) immediately below and the following conditions: (i) immediately prior to and after giving effect to any such increase, no Default or Unmatured Default has occurred or is continuing or shall result therefrom, (ii) immediately prior to and after giving effect to any such increase, the Borrower and its Subsidiaries shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 6.18 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available and (iii) each Additional Lender shall become effective upon a Lender under this Agreement (or in the receipt case of an existing Lender, shall become an Additional Lender with respect to its Additional Revolving Commitment Amount or Additional Term Commitment Amount) 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 and executed only by the Administrative Borrower and each Guarantor, each Additional Lender and the Agent. All Commitments in respect of any Additional Revolving Commitment Amount or Additional Term Commitment Amount shall be Commitments under this Agreement and shall, on the date of the effectiveness of the applicable Incremental Facility Amendment, be added to the then existing Revolving Commitments or Term Commitments, as applicable, and all extensions of credit pursuant thereto shall have the same terms as those that apply to the extensions of credit pursuant to the existing Revolving Commitments and Term Commitments, or as otherwise agreed by the Borrower and the Additional Lenders; provided that (i) after giving effect to all upfront or similar fees, floors or original issue discount payable with respect to such Additional Revolving Commitment Amount or Additional Term Commitment Amount, if the yield applicable to the Additional Revolving Commitment Amount or Additional Term Commitment Amount (in each case, after giving effect to all upfront or similar fees, floors or original issue discount payable with respect to such Additional Revolving Commitment Amount or Additional Term Commitment Amount) is greater than the applicable yield paid pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Revolving Loans or Term Loans (in each case, including any upfront fees, floors or original issue discount paid to the Lenders hereunder) plus 0.50% per annum, then this Agreement shall be amended to provide that the interest rate with respect to the Revolving Loans and Term Loans shall be increased to an amount such that the yield under this Agreement on the Revolving Loans and Term Loans (in each case, after giving effect to all upfront or similar fees, floors or original issue discount paid with respect to the Revolving Loans or Term Loans, as the case may be) shall equal the yield applicable to the proposed Additional Revolving Commitment Amount or Additional Term Commitment Amount (in each case, after giving effect to all upfront or similar fees, floors or original issue discount payable with respect to such Additional Revolving Commitment Amount or Additional Term Commitment Amount)); provided that in determining the applicable yields, (A) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower shall be included (with OID being equated to interest based on the life to maturity of such incremental facility), (B) customary arrangement or commitment fees payable to the joint bookrunners (or their affiliates) or to one or more arrangers (or their affiliates) of any Incremental Facility Amendment shall be excluded and (C) with respect to any floor, such amount shall be converted into an interest margin (in an amount reasonably determined by the Agent and reasonably acceptable to the Borrower, provided that if the parties do not come to a mutual agreement on the calculation of a supplement such conversion, the difference between the floor (no floor being equated to 0%) for the Additional Revolving Commitment Amount or joinder Additional Term Commitment Amount, as applicable, and the existing Revolving Loans or Term Loans, as applicable, shall be equated to an increase in the Applicable Margin for purposes of this clause) for purposes of determining any increase to the applicable yield, (ii) the covenants, events of default and remedies provisions of such Incremental Facility Amendment shall not be more onerous or restrictive on the Borrower or any Guarantor than the covenants, events of default or remedies contained in this Agreement (unless the Borrower agrees that such provisions are for the benefit of all Lenders), (iii) the weighted average life to maturity of any Term Loan made pursuant to such Incremental Facility Amendment shall be no shorter than the weighted average life to maturity of the existing Term Loans and (iv) the maturity date of any Loan made pursuant to such Incremental Facility Amendment shall be no shorter than the maturity date of the existing Loans and (v) to the extent that the terms and provisions of such Incremental Facility Amendment are not identical to the terms and provisions contained in this Agreement (except to the extent permitted by clause (i) and (iv) above) they shall be reasonably satisfactory to the Agent.
(d) 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 Agent, to effect the provisions of this Section 2.21.
(e) The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the following conditions: (i) the conditions set forth in Section 4.2 (it being understood that all references to “such Loan” in such Section 4.2 shall be deemed to refer to proposed increase through the Additional Revolving Commitment Amount or the Additional Term Commitment Amount), (ii) the Agent shall have received copies of resolutions executed by (x) the Borrower, authorizing the incurrence of such additional Obligations and (y) each Guarantor, stating that such additional Obligations are entitled to benefits of the Loan Documents and (iii) the Borrower shall have delivered to the Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably satisfactory to the Agent executed and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Agent on the Restatement Effective Date pursuant to Amendment No.2 as may be reasonably requested by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentAgent, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments other matters as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Term Commitments shall automatically be increased by the amount of Term Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Term Commitments of all Lenders after giving effect to the addition of such Term Commitments, and (ii) the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.21 that is not pro rata among all Lenders holding Revolving Loan LendersCommitments, on the date that any such increase becomes effective, (x) within five Business Dayseach Lender increasing its Revolving Commitment and/or each Additional Lender providing a new Revolving Commitment, on the one hand, shall purchase from each other Lender, on the other hand, via one or more assignments in accordance with the case terms of any Base Rate Loans then outstandingSection 12.3, and at the end of the then current month par (together with respect theretoaccrued interest), such interests in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from outstanding on the date any applicable increase becomes effective as shall be necessary in order that, after giving effect to all such assignments, all such outstanding Revolving Loan Loans will be held by the Lenders ratably in proportion to accordance with their respective Revolving Commitments after giving effect to any such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then the outstanding L/C Obligations and outstanding Swing Line Loans shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit outstanding L/C Obligations and outstanding Swing Line Loans in proportion to their respective Revolving Commitments.
Commitments after giving effect to any applicable increase. Each Lender that assigns a Revolving Loan to a Lender in accordance with this paragraph (hg) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent funding indemnity set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan CommitmentSection 3.4.
Appears in 1 contract
Sources: Credit Agreement (Omnicare Inc)
Increase of Commitments; Additional Lenders. (a) The Borrower From time to time, on or after the Effective Date, so long as no Default or Event of Default has occurred and is continuing, or would occur as a result of a commitment increase pursuant to this Section 2.16, on the applicable Commitment Increase Effective Date, Pride may, upon at least 10 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice Agent, elect to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)10,000,000 up to a maximum aggregate amount (after giving effect thereto) of $750,000,000. In no event shall the aggregate Commitments of all Lenders exceed $750,000,000 at any time. At the time of sending such notice with respect to any increase in the Commitments, Pride (in consultation with the “Additional Administrative Agent) shall specify the proposed Commitment Amount”)Increase Effective Date for such increase in the Commitments.
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower Pride may designate another bank one or more banks or other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) which at the time agrees agree to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and and, in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that (i) any new bank or financial institution that is not an existing Lender must be acceptable to the Administrative AgentAgent and the Issuing Banks, which acceptance will not be unreasonably withheld, conditioned withheld or delayeddelayed and (ii) the Commitment of each Additional Lender must be at least $5,000,000. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation whatsoever to agree to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.16 shall become effective (the “Commitment Increase Effective Date”) upon the (i) receipt by the Administrative Agent of (x) a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed Joinder Agreement signed by the Borrower and Borrowers, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such (y) evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors Borrowers with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such (z) opinions of counsel for the Borrower and the Guarantors Borrowers with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case request and (ii) satisfaction of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrowerconditions set forth in Section 3.04. Promptly after any Commitment Increase Effective Date, the Administrative Agent and will provide the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those a copy of the Revolving Loans Schedule II to the extent applicable Joinder Agreement listing the Commitments and Ratable Percentages of each Lender after such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional LendersIncrease Effective Date.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement Joinder Agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Revolving Commitments added through such agreement Joinder Agreement and the Commitments of each Lender whose Commitment is being increased set forth on Schedule II I hereto shall automatically be deemed amended to be updated to reflect the Incremental Term Loan Commitments or Revolving Commitments increased amount of all Lenders such Lender’s Commitment after giving effect to the addition of such Incremental Term Loan Commitments or Revolving CommitmentsJoinder Agreement.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.16 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Daysthe Borrowers, in the case of any Base Rate Loans then outstanding, Administrative Agent and at the end Lenders shall as of the then current month with respect thereto, in the case effective date of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, increase make adjustments to the extent the Borrower elects outstanding principal amount of Advances (but not any interest accrued thereon or any accrued fees prior to do so and such date), including, subject to the conditions specified in Article 3Section 3.02, the Borrower borrowing of additional Advances hereunder and the repayment of Advances plus all applicable accrued interest, fees and expenses as shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion be necessary to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held provide for Advances by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided , together with any breakage fees and funding losses that with respect are required to this subclause (x), (A) the prepayment tobe paid pursuant to Section 2.06 and Section 2.10, and borrowing from, any existing each Lender shall be effected by book entry deemed to the extent that any portion have made an assignment of its outstanding Advances and Commitments, and assumed outstanding Advances and Commitments of other Lenders as of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans effective date of such Lenders are held ratably by increase as may be necessary to effect the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount)foregoing, and (y) effective upon such increase, the amount of the unfunded participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold unfunded participations in each such Letter of Credit in the proportion to their its respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, bears to the extent set forth in an amendment aggregate Commitments after giving effect to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitmentincrease.
Appears in 1 contract
Sources: Revolving Credit Agreement (Pride International Inc)
Increase of Commitments; Additional Lenders. (a) The Subject to the terms and conditions of this Section 2.24, and so long as no Event of Default has occurred and is continuing, the Borrower may, upon at least 10 days’ by written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice from time to each Revolving Loan Lender)time, propose to (i) request an increase either in the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed $50,000,000 in the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) aggregate (the amount of any such increase or incremental term loan commitment increase, the “Additional Commitment Amount”), resulting in Aggregate Revolving Commitments of not greater than $150,000,000. Such notice shall set forth (i) the amount of the Additional Commitment Amount being requested (which shall be in minimum increments of $10,000,0001,000,000 and a minimum amount of $25,000,000 (unless otherwise approved by the Administrative Agent), ) and (ii) the “date on which the Additional Commitment Amount”Amount is requested to become effective (which shall not be less than 30 days (or such shorter period as the Administrative Agent may agree) nor more than 60 days after the date of such notice).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for For a period of 5 ten Business Days following receipt of such notice, each Lender shall have the right to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(c) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the other Lenders may increase their Revolving Commitments by an aggregate amount up to such unsubscribed Revolving Commitment. If the other Lenders choose not to subscribe to the entire amount, then the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The Borrower may, upon at least 10 15 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), from time to time propose to (i) increase either the Aggregate Revolving Commitments (the amount of any such increase, the “Additional Revolving Commitment Amount”) or (ii) establish one or more incremental term loan commitments increase the Aggregate Term Commitments (the amount of any such incremental term loan commitmentincrease, an the “Incremental Additional Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term LoanCommitment Amount”), by an aggregate amount for clauses (i) and (ii) not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate 300,000,000; provided that each Additional Revolving Commitments Commitment Amount or such Incremental Additional Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which Commitment Amount shall be in minimum increments a principal amount of not less than $10,000,000 or larger multiple of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan 5,000,000. Each Lender shall have the right for a period of 5 Business Days 10 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment or Term Commitment by a principal amount equal to its Pro Rata Share of the Additional Revolving Commitment Amount or its Pro Rata Share of the Additional Term Commitment Amount. No Any Lender who does not respond within such increase in the Aggregate Revolving Commitments 10 day period shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall be deemed to have elected not elect to increase its Revolving Commitment or Term Commitment. No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or Term Commitment or its other obligations under this Agreement and the other Loan Documents, and any decision by a Lender to increase its Revolving Commitment or Term Commitment shall be made in its sole discretion independently from any other Lender.
(b) If any Lender shall elect not to increase its Revolving Commitment or Term Commitment pursuant to subsection paragraph (a) of this Section 2.242.21, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative AgentAgent and in the case of an Additional Revolving Commitment Amount, the Swing Line Lender and each Issuer, which acceptance in each case will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection paragraph (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Revolving Commitment Amount Amount. The sum of the increases in the case Term Commitments of a request the existing Lenders pursuant to increase this paragraph (b) plus the Aggregate Revolving CommitmentsTerm Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Term Commitment Amount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.21 shall be subject to the conditions set forth in paragraph (d) immediately below and the following conditions: (i) immediately prior to and after giving effect to any such increase, no Default or Unmatured Default has occurred or is continuing or shall result therefrom, (ii) immediately prior to and after giving effect to any such increase, the Borrower and its Subsidiaries shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 6.18 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available and (iii) each Additional Lender shall become effective upon a Lender under this Agreement (or in the receipt case of an existing Lender, shall become an Additional Lender with respect to its Additional Revolving Commitment Amount or Additional Term Commitment Amount) 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 and executed only by the Administrative Borrower and each Guarantor, each Additional Lender and the Agent. All Commitments in respect of any Additional Revolving Commitment Amount or Additional Term Commitment Amount shall be Commitments under this Agreement and shall, on the date of the effectiveness of the applicable Incremental Facility Amendment, be added to the then existing Revolving Commitments or Term Commitments, as applicable, and all extensions of credit pursuant thereto shall have the same terms as those that apply to the extensions of credit pursuant to the existing Revolving Commitments and Term Commitments, or as otherwise agreed by the Borrower and the Additional Lenders; provided that (i) after giving effect to all upfront or similar fees, floors or original issue discount payable with respect to such Additional Revolving Commitment Amount or Additional Term Commitment Amount, if the yield applicable to the Additional Revolving Commitment Amount or Additional Term Commitment Amount (in each case, after giving effect to all upfront or similar fees, floors or original issue discount payable with respect to such Additional Revolving Commitment Amount or Additional Term Commitment Amount) is greater than the applicable yield paid pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Revolving Loans or Term Loans (in each case, including any upfront fees, floors or original issue discount paid to the Lenders hereunder) plus 0.50% per annum, then this Agreement shall be amended to provide that the interest rate with respect to the Revolving Loans and Term Loans shall be increased to an amount such that the yield under this Agreement on the Revolving Loans and Term Loans (in each case, after giving effect to all upfront or similar fees, floors or original issue discount paid with respect to the Revolving Loans or Term Loans, as the case may be) shall equal the yield applicable to the proposed Additional Revolving Commitment Amount or Additional Term Commitment Amount (in each case, after giving effect to all upfront or similar fees, floors or original issue discount payable with respect to such Additional Revolving Commitment Amount or Additional Term Commitment Amount)); provided that in determining the applicable yields, (A) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower shall be included (with OID being equated to interest based on the life to maturity of such incremental facility), (B) customary arrangement or commitment fees payable to the joint bookrunners (or their affiliates) or to one or more arrangers (or their affiliates) of any Incremental Facility Amendment shall be excluded and (C) with respect to any floor, such amount shall be converted into an interest margin (in an amount reasonably determined by the Agent and reasonably acceptable to the Borrower, provided that if the parties do not come to a mutual agreement on the calculation of a supplement such conversion, the difference between the floor (no floor being equated to 0%) for the Additional Revolving Commitment Amount or joinder Additional Term Commitment Amount, as applicable, and the existing Revolving Loans or Term Loans, as applicable, shall be equated to an increase in the Applicable Margin for purposes of this clause) for purposes of determining any increase to the applicable yield, (ii) the covenants, events of default and remedies provisions of such Incremental Facility Amendment shall not be more onerous or restrictive on the Borrower or any Guarantor than the covenants, events of default or remedies contained in this Agreement (unless the Borrower agrees that such provisions are for the benefit of all Lenders), (iii) the weighted average life to maturity of any Term Loan made pursuant to such Incremental Facility Amendment shall be no shorter than the weighted average life to maturity of the existing Term Loans and (iv) the maturity date of any Loan made pursuant to such Incremental Facility Amendment shall be no shorter than the maturity date of the existing Loans and (v) to the extent that the terms and provisions of such Incremental Facility Amendment are not identical to the terms and provisions contained in this Agreement (except to the extent permitted by clause (i) and (iv) above) they shall be reasonably satisfactory to the Agent.
(d) 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 Agent, to effect the provisions of this Section 2.21.
(e) The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the following conditions: (i) the conditions set forth in Section 4.2 (it being understood that all references to “such Loan” in such Section 4.2 shall be deemed to refer to proposed increase through the Additional Revolving Commitment Amount or the Additional Term Commitment Amount), (ii) the Agent shall have received copies of resolutions executed by (x) the Borrower, authorizing the incurrence of such additional Obligations and (y) each Guarantor, stating that such additional Obligations are entitled to benefits of the Loan Documents and (iii) the Borrower shall have delivered to the Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably satisfactory to the Agent executed and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Agent on the Effective Date pursuant to Section 4.1(g) as may be reasonably requested by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentAgent, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments other matters as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, (i) the Aggregate Term Commitments shall automatically be increased by the amount of Term Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Term Commitments of all Lenders after giving effect to the addition of such Term Commitments, and (ii) the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.21 that is not pro rata among all Lenders holding Revolving Loan LendersCommitments, on the date that any such increase becomes effective, (x) within five Business Dayseach Lender increasing its Revolving Commitment and/or each Additional Lender providing a new Revolving Commitment, on the one hand, shall purchase from each other Lender, on the other hand, via one or more assignments in accordance with the case terms of any Base Rate Loans then outstandingSection 12.3, and at the end of the then current month par (together with respect theretoaccrued interest), such interests in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from outstanding on the date any applicable increase becomes effective as shall be necessary in order that, after giving effect to all such assignments, all such outstanding Revolving Loan Loans will be held by the Lenders ratably in proportion to accordance with their respective Revolving Commitments after giving effect to any such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then the outstanding L/C Obligations and outstanding Swing Line Loans shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit outstanding L/C Obligations and outstanding Swing Line Loans in proportion to their respective Revolving Commitments.
Commitments after giving effect to any applicable increase. Each Lender that assigns a Revolving Loan to a Lender in accordance with this paragraph (hg) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent funding indemnity set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan CommitmentSection 3.4.
Appears in 1 contract
Sources: Credit Agreement (Omnicare Inc)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount of all such increases not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 200,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”), provided that (i) any new lenders are approved by the Administrative Agent and the Joint Lead Arrangers (such approval not to be unreasonably withheld), (ii) no Commitment of any Lender shall be increased without the consent of such Lender, and (iii) the Borrower is in compliance with Section 3.2, Article IV, Article V, Article VI, Article VII and Section 8.
1. The Borrower may also, but is not required to, specify any fees offered to those Lenders (bthe “Increasing Lenders”) In the case of a request that agree to increase the Aggregate principal amount of their Revolving Commitments, each which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Loan Commitment, as applicable. Each Increasing Lender shall have the right for a period of 5 Business Days as soon as practicable, and in any case within 15 days following receipt of such notice, to elect by specify in a written notice to the Borrower and the Administrative Agent the amount of such proposed Additional Commitment Amount that it is willing to provide. No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any decision by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant shall be made in its sole discretion independently from any other Lender. If any Lender shall fail to subsection (a) of this Section 2.24, notify the Borrower and the Administrative Agent in writing about whether it will increase its Revolving Commitment within 15 days after receipt of such notice, such Lender shall be deemed to have declined to increase its Revolving Commitment.
(b) The Borrower may accept some or all of the offered amounts and may also designate another bank one or more additional banks or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent and the Syndication Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The Borrower and the Administrative Agent shall have discretion jointly to adjust the allocation of such Additional Commitment Amounts among the Increasing Lenders and the Additional Lenders. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection clause (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.23 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and reasonably substance reasonably satisfactory to the Administrative Agent and the Syndication Agent executed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, hereof and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent or the Syndication Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement supplement or joinder and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.23 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Sources: Revolving Credit Agreement (International Speedway Corp)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 50,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan . Each Lender shall have the right for a period of 5 Business Days 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.242.22, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.22 shall become effective upon the receipt by the Administrative Agent of a an supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving together with Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentCommitments, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.22 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Sources: Revolving Credit Agreement (United Industrial Corp /De/)
Increase of Commitments; Additional Lenders. (a) The Subject to the terms and conditions of this Section 2.24, and so long as no Event of Default has occurred and is continuing, the Borrower may, upon at least 10 days’ by written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice from time to each Revolving Loan Lender)time, propose to (i) request an increase either in the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental the aggregate amount of the Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), Commitments by an aggregate amount not to exceed $70,000,000 in the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) aggregate (the amount of any such increase or incremental term loan commitment increase, the “Additional Commitment Amount”), resulting in a sum of Aggregate Revolving Commitments and aggregate Term Loan Commitments of not greater than $200,000,000. Such notice shall set forth (i) the amount of the Additional Commitment Amount being requested (which shall be in minimum increments of $10,000,0001,000,000 and a minimum amount of $25,000,000 (unless otherwise approved by the Administrative Agent), ) and (ii) the “date on which the Additional Commitment Amount”Amount is requested to become effective (which shall not be less than 30 days (or such shorter period as the Administrative Agent may agree) nor more than 60 days after the date of such notice).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for For a period of 5 ten Business Days following receipt of such notice, each Revolving Loan Lender or Term Loan Lender, as applicable, shall have the right to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment or Term Loan Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or Term Loan Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Revolving Commitment or Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(c) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment or Term Loan Commitment pursuant to subsection (a) of this Section 2.24, the other Lenders may increase their Revolving Commitments or Term Loan Commitments by an aggregate amount up to such unsubscribed Revolving Commitment or Term Loan Commitment. If the other Lenders choose not to subscribe to the entire amount, then the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be reasonably acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in either the Revolving Commitments or the Term Loan Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (JTH Holding, Inc.)
Increase of Commitments; Additional Lenders. (a) The From time to time after the Closing Date and in accordance with this Section, the Borrower may, upon at least 10 days’ written notice and one or more Increasing Lenders or Additional Lenders (or such shorter period each as defined below) may be permitted by enter into an agreement to increase the Administrative Agent in its sole discretion) to aggregate principal amount of the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) and/or establish one or more incremental term loan commitments new tranches of Incremental Term Loan Commitments hereunder (any each such incremental term loan commitmentincrease or additional tranche, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio following conditions are satisfied:
(determined (1i) after giving effect the aggregate principal amount of all such Incremental Commitments made pursuant to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with this Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) exceed $500,000,000 (the principal amount of any each such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)Incremental Commitment, the “Additional Incremental Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an each such Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate a minimum amount of the Revolving Commitments $10,000,000 or the establishment increments of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder $5,000,000 in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and excess thereof;
(ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.[Reserved];
(iiii) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofCommitment, (x) no Default or Event of Default shall have occurred exist; provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Commitment and the Administrative Agent may agree that such condition shall be continuing and limited to an absence of an Event of Default as of the date of the execution of the definitive documentation with respect to such Acquisition, (y) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on as of the date of the establishment of such dateIncremental Commitment (or, except for representations and warranties that expressly relate if such representation or warranty relates to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date); provided that, solely with respect to that in the establishment case of any Incremental Term Loan Commitments entered into in connection with Commitment obtained for the purposes of financing of a Limited Condition Acquisitionan Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Term Loan Commitments Commitment may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof such Incremental Commitment (and the Incremental Term Loans or Revolving Loans provided thereunder) shall be (xI) certain “specified representations” agreed to by the Lenders providing such Commitments Specified Representations and (yII) the representations and warranties made by or with respect to on behalf of the applicable target in the Limited Condition purchase, acquisition or similar agreement governing such Acquisition Agreement that or other Investment as are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted the Borrower’s applicable Affiliates or Subsidiaries) has the right (determined without regard to any notice requirement) not to consummate or the right to terminate (or cause the termination of) the Borrower’s (or such Restricted Subsidiary’sAffiliates’ or Subsidiaries’) obligations under such Limited Condition Acquisition Agreement purchase, acquisition or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement other agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement purchase, acquisition or other agreement (or the failure of such representations or warranties to be true and correct accurate or to satisfy the closing conditions in such Limited Condition Acquisition Agreement purchase, acquisition or other agreement applicable to such representations or warranties).
) (f) Upon the acceptance of any such agreement by the Administrative Agentrepresentations and warranties, the Aggregate Revolving Commitment Amount shall automatically be increased by “Specified Target Representations”) and (z) to the amount extent there is a condition that no Material Adverse Effect exists as of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect date of the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition initial funding of such Incremental Term Loan Commitments Commitment, such condition shall be limited to the target of such Acquisition or Revolving Commitments.Investment, in such manner and to the extent required to be satisfied under the definitive documentation with respect to such Acquisition;
(giv) Upon (x) any increase in the aggregate amount of the Revolving Commitments incremental Term Loans made pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders(the “Incremental Term Loans” and, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month commitments with respect thereto, the “Incremental Term Loan Commitments”) shall have a maturity date no earlier than the Revolving Commitment Termination Date in effect at the case time such Incremental Term Loans are incurred and shall have a Weighted Average Life to Maturity no shorter than that of any Index Rate previously established Incremental Term Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after (without giving effect to previous reductions in and previously made amortization payments on such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amountpreviously established Incremental Term Loans), and (y) effective upon any incremental Revolving Commitments provided pursuant to this Section (the “Incremental Revolving Commitments”) shall have identical terms (including pricing and termination date; provided that upfront fees for any Incremental Revolving Commitments will be permitted and shall be determined by the Borrower and the Lenders providing such increaseIncremental Revolving Commitments) to the Revolving Commitments and be treated as the same Class as the Revolving Commitments and the Borrower shall, after the establishment of any Incremental Revolving Commitments pursuant to this Section, repay and incur Revolving Loans ratably as between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to such increase (provided that such repayment and incurrence may, with the Administrative Agent’s consent, be effectuated through assignments among Lenders with Revolving Commitments, which shall not require an Assignment and Acceptance and may be effectuated by the Administrative Agent through changes in the Register and fundings from such Lenders providing Incremental Commitments); provided, further, that Interest Periods applicable to Incremental Term Loans or Revolving Loans advanced pursuant to Incremental Revolving Commitments may, at the election of the Administrative Agent and the Borrower, be made with Interest Period(s) identical to the then remaining Interest Period(s) applicable to existing Term Loans of the relevant Class or existing Revolving Loans of the applicable Class (and allocated to such Interest Period(s) on a proportional basis); and
(v) the Borrower and its Subsidiaries shall be in compliance with each of the Financial Covenants, calculated (x) in the case of Incremental Term Loan Commitments, on the date the Incremental Term Loans provided thereunder are funded or (x) in the case of Incremental Revolving Commitments, on the date such Incremental Revolving Commitments become effective, in each case, as if all such Incremental Term Loans had been made and all such Incremental Revolving Commitments had been established (and fully funded) as of such date, as applicable (including giving effect to the use of proceeds thereof on such date and to any Acquisition consummated after the end of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.1(a) or Section 5.1(b) and on or prior to such date which is funded with such Incremental Term Loans or Incremental Revolving Commitments); provided that in the case of any Incremental Commitment obtained for the purposes of financing an Acquisition or other Investment not prohibited by this Agreement, the Lenders providing such Incremental Commitment may agree that such pro forma compliance shall be tested as of the date of the execution of the definitive documentation with respect to such Acquisition.
(b) The Borrower shall provide at least ten (10) Business Days’ (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion) written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Commitment. The Borrower may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Revolving Commitments and/or provide Incremental Term Loan Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Revolving Commitment and/or the principal amount of the participations held Incremental Term Loan Commitment such Lender is willing to provide, as applicable. No Lender (or any successor thereto) shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment, and any decision by each a Lender to increase its Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing Commitment and/or provide an Incremental Term Loan Commitment shall be included made in its sole discretion independently from any determination other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Required Lenders and such Lenders will not constitute Revolving Commitments and/or the establishment of a separate voting class for any purposes under this Agreement. Any tranche of Incremental Term Loan Commitments, as applicable, pursuant to this Section. No Lender which declines to increase the principal amount of its Revolving Commitment and/or provide an Incremental Term Loan Commitment may be replaced with respect to its existing Revolving Commitment and/or its Term Loans, as applicable, as a result thereof without such Lender’s consent. The Borrower may accept some or all of the offered amounts from existing Lenders or designate new lenders that are acceptable to the Administrative Agent (any such consent (x) to be required only to the extent required under Section 10.4(b) for an assignment of Loans shall or Commitments of such Type to such new lender and (y) not to be entitled to all the benefits afforded by, this Agreement unreasonably withheld) and the other Loan DocumentsBorrower as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), and shall, without limiting which Additional Lenders may assume all or a portion of such Incremental Commitment. The Borrower shall have discretion to adjust the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that allocation of such Incremental Revolving Commitments and/or such Incremental Term Loans among the Increasing Lenders and the Additional Lenders (as it may elect). The sum of the increase in the principal amount of the Revolving Commitments and the aggregate principal amount of the Incremental Term Loan Commitments of the Increasing Lenders plus the principal amount of the Revolving Commitments and the aggregate principal amount of the Term Loan Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Commitment Amount.
(c) Subject to subsections (a) and (b) of this Section, any increase requested by the Borrower shall be subordinated effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder (each, an “Incremental Commitment Joinder”), in right form and substance reasonably acceptable to the Administrative Agent, executed by the Administrative Agent, by the Borrower, by each Additional Lender and by each Increasing Lender, setting forth the Incremental Revolving Commitments and/or Incremental Term Loan Commitments, as applicable, of paymentsuch Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrower with respect to such Incremental Commitment and such opinions of counsel for the Borrower with respect to such Incremental Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower signed by a Responsible Officer, in form and substance reasonably acceptable to the Liens securing Administrative Agent, certifying that each of the conditions in subsection (a) of this Section has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Revolving Commitments and/or such Incremental Term Loans may be subordinated Loans, issued by the Borrower in accordance with Section 2.10; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request in connection with and at the time of any such proposed increase. Upon the effectiveness of any such Incremental Term Loans may Commitment, the Commitments and Pro Rata Share of each Lender will be unsecured, in each case, adjusted to give effect to the extent Incremental Revolving Commitments and/or the Incremental Term Loans, as applicable, and Schedule I shall automatically be deemed amended accordingly.
(d) If any Incremental Term Loan Commitments are to be established pursuant to this Section, other than as set forth herein, all terms with respect thereto shall be as set forth in an amendment the applicable Incremental Commitment Joinder, the execution and delivery of which agreement shall be a condition to this Agreement as mutually agreed by the Borrowereffectiveness of the establishment of the Incremental Term Loan Commitments. Notwithstanding anything to the contrary in Section 10.2, the Administrative Agent and the Additional Lenders or such other Lenders, Borrower are expressly permitted to amend the Loan Documents to the extent necessary to give effect to any increase in each case who are providing such Revolving Commitments and/or establishment of a new Incremental Term Loan CommitmentCommitment pursuant to this Section and mechanical changes necessary or advisable in connection therewith (including amendments to implement the requirements in the preceding sentence or the foregoing clause (a)(iv)(y) of this Section, amendments to ensure pro rata allocations of Eurodollar Loans and Base Rate Loans between Loans incurred pursuant to this Section and Loans outstanding immediately prior to any such incurrence and amendments to implement ratable participation in Letters of Credit between the Incremental Revolving Commitments and the Revolving Commitments outstanding immediately prior to any such incurrence).
(e) This Section 2.23 shall supersede any provisions in Section 2.21 or Section 10.2 to the contrary.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (CareTrust REIT, Inc.)
Increase of Commitments; Additional Lenders. (a) The Borrower mayFrom time to time after the Closing Date and in accordance with this Section 2.25, upon at least 10 days’ written notice the Borrowers and one or more Increasing Lenders or Additional Lenders (or each as defined below) may enter into an agreement to increase the Aggregate Tranche A Revolving Commitments (each such shorter period increase, an “Incremental Tranche A Revolving Commitment”) so long as the following conditions are satisfied:
(i) the aggregate principal amount of all such Incremental Tranche A Revolving Commitments made pursuant to this Section 2.25 shall not exceed $20,000,000 (the principal amount of each such Incremental Tranche A Revolving Commitment, the “Incremental Tranche A Revolving Commitment Amount”);
(ii) the Borrowers shall execute and deliver such documents and instruments and take such other actions as may be permitted reasonably required by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount time of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).proposed increase;
(biii) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to any such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereofincrease, (x) no Default or Event of Default shall have occurred and be continuing and exist, (y) all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), and (z) on such datesince December 31, except for representations 2019, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(iv) [reserved];
(v) the Borrowers and warranties that expressly relate to an earlier date, which their Subsidiaries shall be true in pro forma compliance with each of the financial covenants set forth in Article VI as of the most recently ended Fiscal Month for which financial statements are required to have been delivered, calculated as if all such Incremental Tranche A Revolving Commitments had been established (and correct in all material respects (or in all respects, as applicablefully funded) as of such earlier date; provided that, solely with respect to the establishment first day of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:relevant period for testing compliance;
(iivi) does not impose any Incremental Tranche A Revolving Commitments shall have the same terms and conditions as a condition to funding thereof that no Default or Event of Default the Tranche A Revolving Commitments, including interest rates, covenants, collateral and maturity (other than any Default arrangement, upfront or Event similar fees paid to the Lenders or the Administrative Agent under the Incremental Tranche A Revolving Commitments) and any commitment, arrangement, upfront or similar fees paid to the Lenders or the Administrative Agent under the Incremental Tranche A Revolving Commitments;
(vii) after giving effect to the issuance of Default under Section 8.1(aany Incremental Tranche A Revolving Commitment, each Lender shall maintain the same Pro Rata Share of each of the Aggregate Tranche A Revolving Commitments (after giving effect to the Incremental Tranche A Revolving Commitment), the Aggregate Tranche A-1 Revolving Commitments and the Term Loan, and each Lender agrees to make such assignments of its Tranche A-1 Revolving Commitments and the Term Loan in order for each Lender to hold such Pro Rata Share;
(b), (h), (iviii) or (j)) the Borrowers shall have occurred and be continuing at satisfy all of the time such Limited Condition Acquisition is consummated, conditions set forth in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing Section 3.2 on the Limited Condition Acquisition Test Date date of the issuance of the Incremental Tranche A Revolving Commitments;
(ix) all other terms and conditions with respect to any such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) Incremental Tranche A Revolving Commitments shall have occurred and be continuing at reasonably satisfactory to the time such Limited Condition Acquisition is consummatedAdministrative Agent; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed the Loan Parties shall provide to by the Lenders providing such Commitments Administrative Agent and (y) the representations and warranties made by or each Lender with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower all Mortgaged Property (or any of its Restricted SubsidiariesA) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(f) Upon the acceptance of any such agreement if required by the Administrative Agent, an updated "Life of Loan" Federal Emergency Management Agency Standard Flood Hazard determinations, (B) notices, in the Aggregate form required under the Flood Insurance Laws, about special flood hazard area status and flood disaster assistance duly executed by each applicable Loan Party, and (C) if any improved real property encumbered by any Mortgage is located in a special flood hazard area, a policy of flood insurance that is on terms satisfactory to each Lender.
(b) The Borrower Representative shall provide at least thirty (30) days’ prior written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender) of any proposal to establish an Incremental Tranche A Revolving Commitment. The Borrower Representative may also, but is not required to, specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Tranche A Revolving Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Tranche A Revolving Commitment. Each Increasing Lender shall as soon as practicable, and in any case within fifteen (15) days following receipt of such notice, specify in a written notice to the Borrower Representative and the Administrative Agent the amount of such proposed Incremental Tranche A Revolving Commitment Amount that it is willing to provide. No Lender (or any successor thereto) shall automatically have any obligation, express or implied, to offer to increase the aggregate principal amount of its Tranche A Revolving Commitment, and any decision by a Lender to increase its Tranche A Revolving Commitment shall be increased by made in its sole discretion independently from any other Lender. Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Revolving Commitments added through pursuant to this Section. No Lender which declines to increase the principal amount of its Tranche A Revolving Commitment may be replaced with respect to its existing Tranche A Revolving Commitment as a result thereof without such Lender’s consent. If any Lender shall fail to notify the Borrower Representative and the Administrative Agent in writing about whether it will increase its Tranche A Revolving Commitment within fifteen (15) days after receipt of such notice, such Lender shall be deemed to have declined to increase its Tranche A Revolving Commitment. The Borrowers may accept some or all of the offered amounts or designate new lenders that are acceptable to the Administrative Agent (such approval not to be unreasonably withheld) as additional Lenders hereunder in accordance with this Section (the “Additional Lenders”), which Additional Lenders may assume all or a portion of such Incremental Tranche A Revolving Commitment. The Borrowers and the Administrative Agent shall have discretion jointly to adjust the allocation of such Incremental Tranche A Revolving Commitments among the Increasing Lenders and the Additional Lenders. The sum of the increase in the Tranche A Revolving Commitments of the Increasing Lenders plus the Tranche A Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Incremental Tranche A Revolving Commitment Amount.
(c) Subject to Sections 2.25(a) and 2.25(b), any increase requested by the Borrowers shall be effective upon delivery to the Administrative Agent of each of the following documents:
(i) an originally executed copy of an instrument of joinder, in form and substance reasonably acceptable to the Administrative Agent, executed by each Borrower, by each Additional Lender and by each Increasing Lender, setting forth the new Tranche A Revolving Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof;
(ii) such evidence of appropriate corporate authorization on the part of the Borrowers with respect to such Incremental Tranche A Revolving Commitment and such opinions of counsel for the Borrowers with respect to such Incremental Tranche A Revolving Commitment as the Administrative Agent may reasonably request;
(iii) a certificate of the Borrower Representative signed by a Responsible Officer, in form and substance reasonably acceptable to the Administrative Agent, certifying that each of the conditions in Section 2.25(a) has been satisfied;
(iv) to the extent requested by any Additional Lender or any Increasing Lender, executed promissory notes evidencing such Incremental Tranche A Revolving Commitments issued by the Borrowers in accordance with Section 2.12; and
(v) any other certificates or documents that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent. Upon the effectiveness of any such Incremental Tranche A Revolving Commitment, the Commitments and Pro Rata Share of each Lender will be adjusted to give effect to the Incremental Tranche A Revolving Commitments and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitmentsaccordingly.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (HireQuest, Inc.)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 10 30 days’ ' written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), who shall promptly notify the Lenders, propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, Commitment Amount up to an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 150,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “"Additional Commitment Amount”").
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan . Each Lender shall have the right for a period of 5 Business Days 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24Section, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “"Additional Lender”"), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt by the Administrative Agent of a supplement or lender joinder agreement in the form and substance reasonably satisfactory to of Exhibit E (the Administrative Agent executed "Lender Joinder") signed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and together with such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II Annex I shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in such proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in the proportion to their its respective Revolving CommitmentsCommitment bears to the aggregate Revolving Commitments after giving effect to such increase.
(hf) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting Notwithstanding the foregoing, benefit equally and ratably from the Guarantees and security interests created Borrower may designate new banks or other financial institutions to provide Additional Commitments hereunder during the first 60 days after the Closing Date by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, providing no more than three Business Days' written notice to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders (or such shorter period as the Administrative Agent shall agree) and without first offering such Additional Commitments to existing Lenders pursuant to clause (a) above, so long as the other Lenders, in each case who conditions to increasing the aggregate Revolving Commitments are providing such Incremental Term Loan Commitmentmet.
Appears in 1 contract
Sources: Revolving Credit Agreement (Priority Healthcare Corp)
Increase of Commitments; Additional Lenders. (ac) The Borrower So long as no Default or Event of Default has occurred and is continuing, from time to time after the Restatement Effective Date, the Borrowers may, upon at least 10 ten (10) days’ written notice (or such shorter period of time as may be permitted by the Administrative Agent may agree to in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate U.S. Revolving Commitments or and/or the Aggregate Global Revolving Commitments (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Revolving Commitment”) to make an incremental term loan (any such incremental term loan, ” or an “Incremental Term LoanFacility”), by an ; provided that the aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate all Incremental Revolving Commitments or such Incremental Term Loan is incurred shall not exceed $100,000,000 in connection with a Permitted Acquisition or other Investments permitted by the aggregate over the term of this Agreement, . No Lender shall have any amounts (which for purposes of clarity, do not include obligation to extend any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”)Facility.
(bd) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower The Borrowers may designate another a bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees toto extend such Incremental Facility (each, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lenderextend such Incremental Facility; provided, provided however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(e) An increase in In the aggregate amount case of each Incremental Revolving Commitment:
(iii) such Incremental Revolving Commitment shall have the same terms as the relevant existing Revolving Commitments or being increased (other than any initial upfront fees paid to the establishment Additional Lenders extending such Incremental Revolving Commitment); and
(iv) the outstanding Revolving Loans and the Pro Rata Share of Incremental Term Loan Commitments pursuant to this Section 2.24 shall become effective upon the receipt L/C Obligations will be reallocated by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to on the Administrative Agent executed by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such applicable increase in effective date among the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and Lenders (including the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
Revolving Commitment) in accordance with their revised Pro Rata Shares (ii) does not impose as a condition to funding thereof that no Default or Event of Default and the Revolving Lenders (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at including the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Additional Lenders providing such Commitments Incremental Revolving Commitment) agree to make all payments and (y) adjustments necessary to effect such reallocation and the representations Borrowers shall pay any and warranties made by or all costs required pursuant to Section 2.18 in connection with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under reallocation as if such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as reallocation were a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warrantiesrepayment).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Sources: Credit Agreement (Tiptree Inc.)
Increase of Commitments; Additional Lenders. (a) The Borrower may, upon at least 10 15 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), from time to time propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 200,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Revolving Commitment Amount”).
(b) In the case ; provided that each Additional Revolving Commitment Amount shall be in a principal amount of a request to increase the Aggregate Revolving Commitments, each Revolving Loan not less than $10,000,000 or larger multiple of $5,000,000. Each Lender shall have the right for a period of 5 Business Days 10 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Revolving Commitment Amount. Any Lender who does not respond within such 10 day period shall be deemed to have elected not to increase its Revolving Commitment. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall elect not elect to increase its Revolving Commitment pursuant to subsection paragraph (a) of this Section 2.242.21, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, the Swing Line Lender and each Issuer, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection paragraph (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Revolving Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.21 shall be subject to the conditions set forth in paragraph (d) immediately below and the following conditions: (i) immediately prior to and after giving effect to any such increase, no Default or Unmatured Default has occurred or is continuing or shall result therefrom, (ii) immediately prior to and after giving effect to any such increase, the Borrower and its Subsidiaries shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 6.18 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available and (iii) each Additional Lender shall become effective upon a Lender under this Agreement (or in the receipt case of an existing Lender, shall become an Additional Lender with respect to its Additional Revolving Commitment Amount) pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement giving effect to the modifications permitted by this Section and, as appropriate, the other Loan Documents and executed only by the Administrative Borrower and each Guarantor, each Additional Lender and the Agent. All Commitments in respect of any Additional Revolving Commitment Amount shall be Commitments under this Agreement and shall, on the date of the effectiveness of the applicable Incremental Facility Amendment, be added to the then existing Revolving Commitments, and all extensions of credit pursuant thereto shall have the same terms as those that apply to the extensions of credit pursuant to the existing Revolving Commitments (other than any upfront fee; provided that after giving effect to all upfront or similar fees, floors or original issue discount payable with respect to such Additional Revolving Commitment Amount if the yield applicable to the Additional Revolving Commitment Amount (after giving effect to all upfront or similar fees, floors or original issue discount payable with respect to such Additional Revolving Commitment Amount) is greater than the applicable yield paid pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Revolving Loans (including any upfront fees, floors or original issue discount paid to the Lenders hereunder) plus 0.25% per annum, then this Agreement shall be amended to provide that the interest rate with respect to the Revolving Loans shall be increased to an amount such that the yield under this Agreement on the Revolving Loans (after giving effect to all upfront or similar fees, floors or original issue discount paid with respect to the Revolving Loans) shall equal the yield applicable to the proposed Additional Revolving Commitment Amount (after giving effect to all upfront or similar fees, floors or original issue discount payable with respect to such Additional Revolving Commitment Amount)). 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 Agent, to effect the provisions of this Section.
(d) The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the following conditions: (i) the conditions set forth in Section 4.4 (it being understood that all references to “such Loan” in such Section 4.4 shall be deemed to refer to proposed increase through the Additional Revolving Commitment Amount), (ii) the Borrower and the other Loan Parties shall have delivered such amendments, modifications and/or supplements to the Security Documents as are necessary or, in the reasonable opinion of the Agent, desirable to ensure that the Additional Revolving Commitment Amount is secured by, and entitled to the benefits of, the Security Documents, (iii) the Agent shall have received copies of a supplement resolutions executed by (x) the Borrower, authorizing the incurrence of such additional Obligations and (y) each Guarantor, stating that such additional Obligations are entitled to benefits of the Security Documents and other Loan Documents and (iv) the Borrower shall have delivered to the Agent an opinion or joinder opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably satisfactory to the Agent executed and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Agent on the Effective Date pursuant to Section 4.1(g) as may be reasonably requested by the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan CommitmentAgent, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments other matters as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fe) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount Commitments shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(gf) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.21 that is not pro rata among all Revolving Loan Lenders, on the date that any such increase becomes effective, (x) within five Business Dayseach Lender increasing its Revolving Commitment and/or each Additional Lender providing a new Revolving Commitment, on the one hand, shall purchase from each other Lender, on the other hand, via one or more assignments in accordance with the case terms of any Base Rate Loans then outstandingSection 12.3, and at the end of the then current month par (together with respect theretoaccrued interest), such interests in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from outstanding on the date any applicable increase becomes effective as shall be necessary in order that, after giving effect to all such assignments, all such outstanding Revolving Loan Loans will be held by the Lenders ratably in proportion to accordance with their respective Revolving Commitments after giving effect to any such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then the outstanding L/C Obligations and outstanding Swing Line Loans shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit outstanding L/C Obligations and outstanding Swing Line Loans in proportion to their respective Revolving Commitments.
Commitments after giving effect to any applicable increase. Each Lender that assigns a Revolving Loan to a Lender in accordance with this paragraph (hf) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent funding indemnity set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan CommitmentSection 3.4.
Appears in 1 contract
Sources: Credit Agreement (Omnicare Inc)
Increase of Commitments; Additional Lenders. (a) The Borrower mayshall have the right from time to time, upon at least 10 daysfive (5) Business Days’ prior written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice Agent, to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Facility”) or (ii) establish one or more incremental additional term loan commitments loans (any each such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term LoanFacility”), and together with each Incremental Revolving Facility, an “Incremental Facility”) by an aggregate amount not to exceed the sum Incremental Cap; provided that:
(a) no Default or Event of Default shall have occurred and be continuing on the date on which such Incremental Facility is to become effective; provided that in connection with a requested borrowing of any Incremental Term Loan for the express purposes of funding, in whole or in part, the purchase price of a Permitted Acquisition that is a Limited Condition Transaction, the condition of this Section 2.23(a) shall be (x) no Default or Event of Default exists or would exist at the greater of (1) $300,000,000 time a binding purchase agreement for such transaction is entered into by the applicable Loan Party and (2y) 100% the absence of LTM Consolidated EBITDA a Specified Event of Default at the time of and after giving effect to the consummation of such Limited Condition Transaction;
(b) both before and after giving effect to the consummation of the applicable Incremental Facility and the transactions related thereto, each of the representations and warranties contained in this Agreement and in the other Loan Documents shall be true and correct in all material respects to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date (provided that if a representation and warranty is qualified as to “materiality” or “Material Adverse Effect”, the materiality qualifier set forth above shall be disregarded with respect to such representation and warranty for purposes of this condition); provided that in connection with a requested borrowing of any Incremental Term Loan for the sole express purpose of financing in whole or in part the purchase price for a Limited Condition Transaction, (i) such representations and warranties shall be true and correct in all material respects (provided that if a representation and warranty is qualified as to “materiality” or “Material Adverse Effect”, the materiality qualifier set forth above shall be disregarded with respect to such representation and warranty for purposes of this condition) on and as of the date incurredof effectiveness of the definitive purchase agreement for such Limited Condition Transaction and (ii) the representations and warranties required to be correct and accurate at the time of the closing of such Limited Condition Transaction and funding of any applicable Incremental Term Loan will be limited to the Specified Representations and such other representations and warranties in the applicable acquisition agreement made by or with respect to the Person or assets subject to such Permitted Acquisition that are material to the interests of the Lenders shall be true and correct in all material respects, but only to the extent that the Borrower or applicable Subsidiary has the right to terminate its obligations under such acquisition agreement or not consummate such Permitted Acquisition as a result of a breach of such representations in such acquisition agreement;
(c) such Incremental Facility shall be in a minimum amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amounts as the Administrative Agent may agree in its discretion);
(d) such Incremental Revolving Facility or Incremental Term Facility shall be effective only upon receipt by the Administrative Agent of (i) additional Revolving Commitments (each such commitment, an “Incremental Revolving Commitment”) in a corresponding amount of such requested Incremental Revolving Facility or Incremental Term Loan Commitments, in each case, in a corresponding amount of such requested Incremental Term Facility from either existing Lenders and/or one or more other institutions that qualify as assignees under Section 11.4 and which are approved by the Administrative Agent (each such approval not to be unreasonably withheld or delayed) (each such institution, an “Additional Lender”) (and with respect to any Additional Lender providing an Incremental Revolving Commitment, with the approval of each of the Issuing Bank and the Swingline Lender) and (yii) if either of such increase to the Aggregate documentation from each existing Lender or Additional Lender providing an Incremental Revolving Commitments Commitment or such Incremental Term Loan is incurred Commitment evidencing its agreement to provide an Incremental Revolving Commitment and/or Incremental Term Loan Commitment and its acceptance of the obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(e) the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the manager or board of directors of the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such Incremental Facility and the validity of such Incremental Facility, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(f) the Administrative Agent shall have received a Pro Forma Compliance Certificate demonstrating compliance with the financial covenants in Article VI hereof after giving effect to such Incremental Facility (without “netting” the cash proceeds of the applicable Incremental Facility against Consolidated Total Debt and assuming, for purposes of such demonstration, that all Incremental Revolving Commitments are fully drawn) on a Pro Forma Basis in form and substance reasonably satisfactory to the Administrative Agent; provided that in connection with a requested borrowing of under any Incremental Term Loan Commitment for the express purposes of funding, in whole or in part, the purchase price of a Permitted Acquisition that is a Limited Condition Transaction, the date of determination for compliance with financial covenants in Article VI on a Pro Forma Basis shall be the date on which a binding purchase agreement is entered into by the Borrower or other Investments permitted by applicable Subsidiary;
(g) if any Revolving Loans are outstanding at the time of the incurrence of any Incremental Revolving Facility, the Borrower shall, if applicable, prepay one or more existing Revolving Loans (such prepayment to be subject to Section 2.19) in an amount necessary such that after giving effect to such Incremental Revolving Facility, each Lender will hold its Pro Rata Share of outstanding Revolving Loans;
(h) any Incremental Revolving Facility shall have terms identical to those for the Revolving Loans under this Agreement, any amounts (which except for upfront fees payable to the Lenders providing commitments for such Incremental Revolving Facility and, for purposes of clarity, do not include no Incremental Revolving Facility shall be subject to any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) limited conditionality in connection with any Limited Condition AcquisitionTransaction;
(i) with respect to any Incremental Term Facility, the interest rate, interest rate margins, fees, discount, amortization, protection with respect to the final maturity date and Weighted Average Life to Maturity and the final maturity date for such Incremental Term Facility applicable to any Incremental Term Facility shall be as set forth in accordance the definitive documentation therefore; provided that (i) any such Incremental Term Facility shall have a final maturity date that is coterminous with Section 1.7(a)or later than the Revolving Commitment Termination Date and the Maturity Date of the Term Loan A, (ii) the Weighted Average Life to Maturity of such Incremental Term Facility shall not be greater less than 1.75 the Weighted Average Life to 1 Maturity of the Term Loan A or any other then existing Incremental Term Loan, (iii) such Incremental Term Facility shall share ratably in any mandatory prepayments of any then-existing Term Loan (or otherwise provide for more favorable mandatory prepayment treatment for the other Term Loans) and shall have ratable voting rights as the Term Loan A (or otherwise provide for more favorable voting rights for the other Term Loans) and (iv) the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on the lesser of a four-year average life to maturity or the remaining life to maturity) (the “All-In Yield”), but excluding arrangement, structuring and underwriting fees paid or payable to the any arranger of such Incremental Term Loan or its Affiliates) applicable to such Incremental Term Loan shall not be more than 0.50% higher than the corresponding All-In Yield (determined on the same basis) applicable to the existing Aggregate Revolving Commitments, Term Loan A or any then outstanding Incremental Term Loan (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000), the “Additional Commitment Amount”).
(b) In the case of a request to increase interest on the Aggregate Revolving Commitments, each Revolving the Term Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the Borrower A and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for existing Incremental Term Loan Commitmentsmay be increased to the extent necessary to satisfy this requirement, or (y) if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) Term SOFR in respect of this Section 2.24, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person Incremental Facility includes a floor that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in greater than both the case of any other such Person (an “Additional Lender”), which at the time agrees floor applicable to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (c) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving Commitments., the Term Loan A or any existing Incremental Facility and 3-month Term SOFR then in effect, such excess amount (over the greater of the existing floor and such 3-month Term SOFR) shall be equated to interest rate for purposes of determining the applicable interest rate under such Incremental Facility and (z) differences in the Term SOFR or Base Rate floor if required to be adjusted pursuant to the foregoing shall be added to the Term SOFR or Base Rate floor to the extent required (and not to the Applicable Margin);
(dj) No no Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or to provide an any portion of any Incremental Term Loan CommitmentFacility, and any decision by a Lender to increase its Revolving Commitment or provide an any portion of any Incremental Term Loan Commitment Facility shall be made in its sole discretion independently from any other Lender.;
(ek) An increase no Arranger nor any Lender shall have any responsibility for arranging any such Incremental Facility without their prior written consent and subject to such conditions, including fee arrangements, as they may provide in connection therewith;
(l) except as otherwise required or permitted by clause (a) through (k) above, all other terms of any Incremental Facility, if not consistent with the aggregate amount terms of the Revolving Commitments Term Loan A or the establishment of Incremental Term Loan Commitments pursuant to Revolving Loans under this Section 2.24 Agreement, as the case may be, shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance be reasonably satisfactory to the Administrative Agent executed by Agent;
(m) for purposes of clarity, extensions of credit under any Incremental Facility shall constitute Loans hereunder and rank pari passu with all other Loans hereunder and shall be secured on a pari passu basis with the Borrower and by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, Obligations; and,
(n) Notwithstanding anything to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything contrary in Section 10.2 to the contrary11.2, the Administrative Agent, the Borrower, the Guarantors Loan Parties and the existing Lenders and/or Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into providing any such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Incremental Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing any such Incremental Term Loan Commitments may agree Commitments, without the further consent of any other Person, are expressly permitted to a “funds certain provision” that:
(ii) does not impose as a condition enter into an Incremental Facility Amendment to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at amend the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only Loan Documents to the extent necessary to give effect to Incremental Facility, and to implement any technical, administrative and/or mechanical changes that the Borrower (are necessary or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties advisable to be true implemented in connection therewith (including, without limitation, to ensure continuing pro rata allocations of Loans and correct or Commitments and to satisfy the closing conditions implement ratable participations in such Limited Condition Acquisition Agreement applicable to such representations or warrantiesLetters of Credit).
(f) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(g) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Sources: Credit Agreement (Biote Corp.)
Increase of Commitments; Additional Lenders. (a) The So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender), propose to (i) increase either the Aggregate Revolving Commitments or (ii) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) and (y) if either of such increase to the Aggregate Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) 70,000,000 (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”).
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan . Each Lender shall have the right for a period of 5 Business Days 15 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such Lender (or any successor thereto) shall have any obligation to increase in the Aggregate its Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or its other obligations under this Agreement and the Swingline Commitmentother Loan Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(cb) In the case of a request for Incremental Term Loan Commitments, or if If any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.242.23, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a Lender; provided, however, that any new bank or financial institution must be acceptable to the Administrative Agent, which acceptance will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 2.23 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and Borrower, by each Additional Lender and by each other Revolving Loan Lender whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and together with such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the Additional Commitment Amount, as applicable, may enter into such amendments to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreement, and to provide the Additional Lenders with the benefits of this Agreement that are available to the other Lenders in the same Class as such Additional Lenders.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of the Revolving Commitments added through such agreement supplement or joinder and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Commitments or Revolving Commitments.
(ge) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.24 2.23 that is not pro rata among all Revolving Loan Lenders, (x) within five Business Days, in the case of any Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Eurodollar Loans not denominated in Sterling then outstanding, the Borrower shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the conditions specified in Article 3III, the Borrower shall reborrow the Revolving Loans from the Revolving Loan Lenders in proportion to their respective Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Loans are held by the Revolving Loan Lenders in proportion to their respective Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Lender in each Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to their respective Revolving Commitments.
(h) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included in any determination of the Required Lenders and such Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Term Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of payment, the Liens securing such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each case, to the extent set forth in an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment.
Appears in 1 contract
Increase of Commitments; Additional Lenders. (a) The At any time before the Extended Commitment Termination Date, so long as no Event of Default has occurred and is continuing, the Borrower Representative may, upon at least 10 30 days’ written notice (or such shorter period as may be permitted by the Administrative Agent in its sole discretion) to the Administrative Agent (who shall promptly provide a copy of such notice to each Revolving Loan Lender)Agent, propose to (i) increase either the Aggregate Extended Revolving Commitments or (iiincluding without limitation by converting any Non-Extended US Revolving Commitment to an Extended US Revolving Commitment) establish one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make an incremental term loan (any such incremental term loan, an “Incremental Term Loan”), by an aggregate amount not to exceed the sum lesser of (x) the greater of (1) $300,000,000 and (2) 100% of LTM Consolidated EBITDA (as of the date incurred) 130,000,000 and (y) if either the aggregate amount of such increase to reductions in the Aggregate Non-Extended US Revolving Commitments or such Incremental Term Loan is incurred in connection with a Permitted Acquisition or other Investments permitted by this Agreement, any amounts (which for purposes of clarity, do not include any amounts incurred in reliance upon clause (x) and shall not be included in Indebtedness for purposes of calculating made since the Leverage Ratio for purpose of this clause (y)) so long as the pro forma Leverage Ratio (determined (1) after giving effect to such acquisition and assuming that such acquisition was consummated on the first day of the most recently ended period of four consecutive Fiscal Quarters and (2) in connection with any Limited Condition Acquisition, in accordance with Section 1.7(a)) shall not be greater than 1.75 to 1 (it being understood that the increase of Aggregate Revolving Commitments and Incremental Term Loan Commitments may, at the election of the Borrower, be incurred under clause (y) of this Section 2.24(a) prior to any use of clause (x) and regardless of whether there is capacity under clause (x) hereof and if both clauses (x) and (y) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (y)) Restatement Date (the amount of any such increase or incremental term loan commitment (which shall be in minimum increments of $10,000,000)increase, the “Additional Commitment Amount”), of which up to $50,000,000 may be applied to increase the Canadian Revolving Commitments. No Lender (or any successor thereto) shall have any obligation to increase its Extended Revolving Commitments or its other obligations under this Agreement and the other Loan Documents, or to convert its Non-Extended US Revolving Commitment to an Extended US Revolving Commitment, and any decision by a Lender to increase its Extended Revolving Commitments or convert its Non-Extended US Revolving Commitment shall be made in its sole discretion independently from any other Lender.
(b) In the case of a request to increase the Aggregate Revolving Commitments, each Revolving Loan Lender shall have the right for a period of 5 Business Days following receipt of such notice, to elect by written notice to the The Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. No such increase in the Aggregate Revolving Commitments shall increase any of the Alternative Currency Sublimit, the LC Commitment or the Swingline Commitment.
(c) In the case of a request for Incremental Term Loan Commitments, or if any Revolving Loan Lender shall not elect to increase its Revolving Commitment pursuant to subsection (a) of this Section 2.24, the Borrower Representative may designate another bank or the banks and other financial institution institutions (which may be, but need not be, one or more of the existing Lenders) which at to provide the time agrees to, in the case of any such Person that is an existing Lender, increase its incremental Extended Revolving Commitment or provide an Incremental Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), which at the time agrees to become a party to this Agreement, if not already a LenderCommitments; provided, however, that any new bank or financial institution that is not already a Lender (each, an “Additional Lender”) must be acceptable to the Administrative Agent and, with respect to an increase in the Canadian Revolving Commitments, the Canadian Funding Agent, which acceptance acceptances will not be unreasonably withheld, conditioned withheld or delayed. The sum of the increases in the Extended Revolving Commitments of the existing Lenders pursuant to this subsection (cb) plus the Extended Revolving Commitments of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment Amount in the case of a request to increase the Aggregate Revolving CommitmentsAmount.
(d) No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents or provide an Incremental Term Loan Commitment, and any decision by a Lender to increase its Revolving Commitment or provide an Incremental Term Loan Commitment shall be made in its sole discretion independently from any other Lender.
(ec) An increase in the aggregate amount of the Extended Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 4.17 shall become effective upon the receipt by the Administrative Agent of a supplement or joinder in form and substance reasonably satisfactory to the Administrative Agent executed by the Borrower and Borrowers, by each Additional Lender and Lender, by each other Revolving Loan Lender whose Extended Revolving Commitment is to be increasedincreased and by each Lender converting a Non-Extended US Revolving Commitment to an Extended US Revolving Commitment, setting forth the new Extended Revolving Commitments or the Incremental Term Loan Commitments of such Lenders and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof, and, to the extent requested by such Additional Lender or such other Revolving Loan Lender whose Revolving Commitment is to be increased, Revolving Notes evidencing such increase in the Revolving Commitment or promissory notes evidencing the incurrence of such Incremental Term Loan Commitment, and such evidence of appropriate corporate authorization on the part of the Borrower and the Guarantors Borrowers with respect to the increase in the Extended Revolving Commitments or the incurrence of the Incremental Term Loan Commitments and such opinions of counsel for the Borrower and the Guarantors Loan Parties with respect to the increase in the Revolving Commitments or the incurrence of the Incremental Term Loan Commitments as the Administrative Agent may reasonably request, and, in the case of the incurrence of the Incremental Term Loan Commitments, an amendment to this Agreement as mutually agreed by the Borrower, the Administrative Agent and the Additional Lenders or such other Lenders, in each case who are providing such Incremental Term Loan Commitment; provided that (i) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Revolving Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (ii) the interest rates, maturity, mandatory prepayment provisions and amortization schedule applicable to such Incremental Term Loans shall be determined by the Borrower and the Lenders holding the Incremental Term Loan Commitments. In connection with the foregoing, and notwithstanding anything in Section 10.2 to the contrary, the Administrative Agent, the Borrower, the Guarantors and the Additional Lenders or existing Lenders participating in the The Additional Commitment Amount, as applicableshall, may enter into such amendments on the date of the effectiveness of the applicable increase, be added to this Agreement as may be necessary or appropriate (in the Administrative Agent’s judgment) to incorporate the terms of Additional Commitment Amount into the terms of this Agreementthen existing Extended Revolving Commitments, and to provide all extensions of credit pursuant thereto shall have the Additional Lenders with the benefits of this Agreement same terms as those that are available apply to the other Lenders in extensions of credit pursuant to the same Class as such Additional Lendersexisting Extended Revolving Commitments.
(i) Notwithstanding anything to the contrary set forth in Section 3.2, an increase in the aggregate amount of the Revolving Commitments or the establishment of Incremental Term Loan Commitments pursuant to this Section 2.24 shall be subject to, at the time of and immediately after giving effect to such proposed increase in the aggregate amount of the Revolving Commitments or establishment of Incremental Term Loan Commitments and the use of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing and all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on such date, except for representations and warranties that expressly relate to an earlier date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date; provided that, solely with respect to the establishment of Incremental Term Loan Commitments entered into in connection with the financing of a Limited Condition Acquisition, the Lenders providing such Incremental Term Loan Commitments may agree to a “funds certain provision” that:
(ii) does not impose as a condition to funding thereof that no Default or Event of Default (other than any Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j)) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated, in which event the condition to funding thereof shall instead be that (x) no Default or Event of Default shall have occurred and be continuing on the Limited Condition Acquisition Test Date with respect to such Limited Condition Acquisition and (y) no Default or Event of Default under Section 8.1(a), (b), (h), (i) or (j) shall have occurred and be continuing at the time such Limited Condition Acquisition is consummated; and
(iii) provides that the only representations and warranties the making of which shall be a condition to funding thereof shall be (x) certain “specified representations” agreed to by the Lenders providing such Commitments and (y) the representations and warranties made by or with respect to the applicable target in the Limited Condition Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Restricted Subsidiaries) has the right to terminate the Borrower’s (or such Restricted Subsidiary’s) obligations under such Limited Condition Acquisition Agreement or to decline to consummate the transactions contemplated by such Limited Condition Acquisition Agreement as a result of a breach of such representations or warranties in such Limited Condition Acquisition Agreement (or the failure of such representations or warranties to be true and correct or to satisfy the closing conditions in such Limited Condition Acquisition Agreement applicable to such representations or warranties).
(fd) Upon the acceptance of any such agreement supplement or joinder by the Administrative Agent, the Aggregate Extended Revolving Commitment Amount shall automatically be increased by the amount of the Extended Revolving Commitments added through such agreement supplement or joinder, and Schedule II shall automatically be deemed amended to reflect the Incremental Term Loan Commitments or Revolving Commitments of all Lenders after giving effect to the addition of such Incremental Term Loan Extended Revolving Commitments or Revolving Commitments(and upon request of any party, the Administrative Agent will promptly circulate the updated Schedule II to all parties hereto).
(ge) Upon any increase in the aggregate amount of the Extended US Revolving Commitments pursuant to this Section 2.24 4.17 that is not pro rata among all Revolving Loan Extended US Lenders, (x) within five (5) Business Days, in the case of any Extended Base Rate Loans then outstanding, and at the end of the then current month with respect thereto, in the case of any Index Rate Loans or Eurocurrency Loans denominated in Sterling then outstanding, and at the end of the then current Interest Period with respect thereto, in the case of any Eurocurrency Extended Eurodollar Loans not denominated in Sterling then outstanding, the Borrower US Borrowers shall prepay such Extended Loans in their entirety and, to the extent the Borrower elects US Borrowers elect to do so and subject to the conditions specified in Article 3V, the Borrower US Borrowers shall reborrow the Revolving Extended Loans from the Revolving Loan Extended US Lenders in proportion to their respective Extended US Revolving Commitments after giving effect to such increase, until such time as all outstanding Revolving Extended US Loans are held by the Revolving Loan Extended US Lenders in proportion to their respective Extended US Revolving Commitments after giving effect to such increase); provided that with respect to this subclause (x), (A) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (B) the existing Revolving Loan Lenders, as applicable, and the Additional Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Loans of such Lenders are held ratably by the Lenders of such Class in accordance with the respective Commitments of such Class of such Lenders (after giving effect to such Additional Commitment Amount), increase and (y) effective upon such increase, the amount of the participations held by each Revolving Loan Extended US Lender in each US Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Extended US Lenders shall hold participations in each such US Letter of Credit in proportion to their respective Extended US Revolving Commitments.
(hf) The Additional Lenders or existing Lenders providing an Incremental Term Loan Commitment shall be included Upon any increase in any determination the aggregate amount of the Required Lenders and such Lenders will Canadian Revolving Commitments pursuant to this Section 4.17 that is not constitute a separate voting class for pro rata among all Canadian Lenders, (x) within five (5) Business Days, in the case of any purposes under this Agreement. Any Incremental Term Canadian Prime Rate Loans shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Loans Documents, except that such Incremental Term Loans may be subordinated in right of paymentthen outstanding, the Liens securing Canadian Borrowers shall prepay such Incremental Term Loans may be subordinated or such Incremental Term Loans may be unsecured, in each casetheir entirety and, to the extent the Canadian Borrowers elect to do so and subject to the conditions specified in Article V, the Canadian Borrowers shall reborrow Loans from the Canadian Lenders in proportion to their respective Canadian Revolving Commitments after giving effect to such increase, until such time as all outstanding Canadian Prime Rate Loans are held by the Canadian Lenders in proportion to their respective Canadian Revolving Commitments after giving effect to such increase and (y) effective upon such increase, the amount of the participations held by each Canadian Lender in each Canadian Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Canadian Lenders shall hold participations in each such Canadian Letter of Credit in proportion to their respective Canadian Revolving Commitments.
(g) On the DnB NOR Commitment Termination Date, without any further action by any party hereto and without the payment of any fees or other incremental yield to the DnB NOR Lenders, (i) the DNB NOR Commitments shall automatically be converted to additional Extended US Revolving Commitments in an aggregate amount equal to the outstanding DnB NOR Loans outstanding on the DnB NOR Commitment Termination Date, (ii) the Aggregate Extended Revolving Commitment Amount shall automatically be increased by the amount of the Extended Revolving Commitments added upon such conversion and (iii) Schedule II shall automatically be deemed amended to reflect the Commitments of all Lenders after giving effect to the conversion of the DnB NOR Commitments to Extended US Revolving Commitments. On the DnB NOR Commitment Termination Date, (x) the US Borrowers shall prepay such DnB NOR Loans in their entirety with an Extended US Revolving Borrowing in an amount equal to the then outstanding DnB NOR Loans, such Extended US Revolving Borrowing to be funded by the Extended US Lenders in proportion to their respective Extended US Revolving Commitments after giving effect to the conversion of the DnB NOR Commitments to Extended US Revolving Commitments, and (y) the amount of the participations held by each Extended US Lender in each US Letter of Credit then outstanding shall be adjusted automatically such that, after giving effect to such adjustments, the Extended US Lenders shall hold participations in each such US Letter of Credit in proportion to their respective Extended US Revolving Commitments; provided, however, that to the extent that the conditions set forth in an amendment Section 5.2 are not satisfied on the DnB NOR Commitment Termination Date, the DnB NOR Loans shall be deemed to be Extended Revolving Loans outstanding solely under the incremental Extended US Revolving Commitments arising pursuant to this Agreement as mutually agreed by clause (g), and no such adjustment to the Borrowerparticipations in the US Letters of Credit shall be made, unless and until such conditions are satisfied. The foregoing increase in the Administrative Agent and Extended US Revolving Commitments from the Additional Lenders or such other Lenders, conversion of the DnB NOR Commitments shall not limit in each case who are providing such Incremental Term Loan Commitmentany manner the ability of the Borrowers to increase the Extended US Revolving Commitments pursuant to clause (a) above.
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Sources: Revolving Credit Agreement (Macquarie Infrastructure CO LLC)