Revolving Commitment Increases. (a) Borrower shall have the right, but not the obligation, after the Closing Date, upon notice to the Administrative Agent (an “Commitment Increase Notice”), to request an increase in the aggregate commitments under the Initial Revolving Facility (which may, at the election of Borrower, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender, the Swing Line Commitment) (each, a “Revolving Commitment Increase”, and the loans thereunder, “Incremental Revolving Loans;” the facility in connection therewith a “Incremental Revolving Facility”) by an aggregate amount of up to the greater of $500,000,000 and 50.0% of Consolidated EBITDA for the most recently ended Test Period as of such time; provided that (i) no commitment of any Lender may be increased without the consent of such Lender, (ii) no Event of Default then exists or would result immediately after giving effect thereto (other than in connection with a Limited Condition Acquisition), (iii) the Incremental Revolving Loans (A) shall be guaranteed by the Guarantors and shall rank pari passu in right of (1) priority with respect to the Collateral and (2) payment with respect to the Obligations in respect of the Commitments in effect prior to the Revolving Commitment Increase and (B) shall be on terms and pursuant to the documentation applicable to the existing Commitments or otherwise acceptable to the Administrative Agent (it being understood that terms not substantially identical to the Revolving Facility which are applicable only after the then-existing Revolving Facility Termination Date are acceptable); provided that the Applicable Revolving Loan Margin relating to the Incremental Revolving Loans may be less than, the same or exceed the Applicable Revolving Loan Margin relating to the Commitments in effect prior to the Closing Date of the Revolving Commitment Increase so long as, in the event that the Effective Yield for such Incremental Revolving Loans is greater than the Effective Yield applicable to all Revolving Loans immediately prior to the effective date of the Revolving Commitment Increase by more than 0.50% per annum, then the Effective Yield for such Revolving Loans shall be increased to the extent necessary so that the Effective Yield for such Revolving Loans is equal to the Effective Yield for such Incremental Revolving Loans minus 0.50% per annum, and (iv) the Revolving Commitment Increase shall be requested in minimum amounts of $15,000,000 or a higher multiple of $1,000,000. The proceeds of each Revolving Commitment Increase may be used for any transaction permitted under this Agreement. Any Revolving Commitment Increase may be denominated in U.S. Dollars. Each Commitment Increase Notice shall set forth (i) the amount of the Revolving Commitment Increase being requested and (ii) the date on which such Revolving Commitment Increase is requested to become effective. (b) The Borrower may seek a Revolving Commitment Increase from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent would be required under Section 11.12(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans to be made thereunder, consistent with the provisions set forth in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Revolving Commitment Increase, as applicable, or otherwise to effect the provisions of this Section 2.18, notwithstanding any requirements of Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto. (c) Upon the effectiveness of any Revolving Commitment Increase entered into pursuant to this Section 2.18, each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Facility (each, an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Facility Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Facility be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (d) Upon the effectiveness of any Revolving Commitments Increase entered into pursuant to this Section 2.18, each Lender with a Revolving Commitment immediately prior to the providing of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment and each Lender with an Incremental Revolving Facility will equal the percentage of the aggregate Revolving Commitments and aggregate commitments under the Incremental Revolving Facilities of all Lenders represented by such Lender’s Revolving Commitment and such Lender’s commitment under the Incremental Revolving Facility, as applicable. If, on the date of the providing of such Incremental Revolving Facility, there are any Revolving Loans outstanding, such Revolving Loans shall, on or prior to the effectiveness of such Incremental Revolving Facility, be prepaid from the proceeds of the Incremental Revolving Loans made hereunder (reflecting such commitments under the Incremental Revolving Facility), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding the foregoing, the effectiveness of any Revolving Commitment Increase under this Section 2.18 shall be subject to the satisfaction of the conditions, including the terms of Section 11.31, as agreed between the lenders providing such Revolving Commitment Increase and the Borrower and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officer’s certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion utilized generally in connection with similar credit facilities). (f) Notwithstanding anything to the contrary in this Section 2.18, the Revolving Commitment Increase may be in the form of a separate “first-in, last out” tranche (the “FILO Tranche”) with a separate borrowing base against the Borrowing Base Assets and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin of other Loans pursuant to clause (a) above) among the Borrower, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries of the Borrower other than the Guarantors; (2) if the FILO Tranche availability exceeds $0, any Revolving Borrowing thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) the Borrower may not prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase) shall, subject to the terms of the ABL/Bond Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (5) no changes affecting the priority status of the Loans (other than the FILO Tranche), on the one hand, and the FILO Tranche, on the other hand, may be made without the consent of the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase), other than such changes which affect only the FILO Tranche. (g) This Section 2.18 shall supersede any provisions in this Agreement to the contrary, including Sections 2.16 or 11.12. For the avoidance of doubt, any of the provisions of this Section 2.18 may be amended with the consent of the Required Lenders, the Administrative Agent and the Borrower.
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Revolving Commitment Increases. (ai) Borrower shall have the right, but not the obligation, after the Closing Agreement Date, upon notice to the Administrative Agent (an “Commitment Increase Notice”), to request an increase in the aggregate commitments under the Initial Revolving Facility (which may, at the election of Borrower, include a proportionate increase to the LC Letter of Credit Commitment Amount and, with the consent of the Swing Line Lender, the include a proportionate increase to Swing Line Commitment) (each, a “Revolving Commitment Increase”, and the loans thereunder, “Incremental Revolving Loans;” the facility in connection therewith a “Incremental Revolving Facility”) (with Administrative Agent’s consent thereto not to be unreasonably withheld or delayed) by an aggregate amount of up to the greater of $500,000,000 and 50.0% of Consolidated EBITDA for the most recently ended Test Period as of such time50,000,000; provided that (iA) no commitment of any Lender may be increased without the consent of such Lender, (iiB) no Event of Default then exists or would result immediately after giving effect thereto (other than in connection with a Limited Condition Acquisition)thereto, (iiiC) the Incremental Revolving Loans (A1) shall be guaranteed by the Guarantors and shall rank pari passu in right of (1x) priority with respect to the Collateral and (2y) payment with respect to the Obligations in respect of the Commitments in effect prior to the Revolving Commitment Increase and (B2) shall be on terms and pursuant to the documentation applicable to the existing Commitments or otherwise acceptable to the Administrative Agent (it being understood that terms not substantially identical to the Revolving Facility which are applicable only after the then-existing Revolving Facility Termination Maturity Date are acceptable); provided that the Applicable Revolving Loan Margin relating to the Incremental Revolving Loans may be less than, the same or exceed the Applicable Revolving Loan Margin relating to the Commitments in effect prior to the Closing Date of the Revolving Commitment Increase so long as, in the event that the Effective Yield for such Incremental Revolving Loans is greater than the Effective Yield applicable to all Revolving Loans immediately prior to the effective date of the Revolving Commitment Increase by more than 0.50% per annum, then the Effective Yield for such Revolving Loans shall be increased to the extent necessary so that the Effective Yield for such Revolving Loans is equal to the Effective Yield for such Incremental Revolving Loans minus 0.50% per annum, and (ivD) the Revolving Commitment Increase shall be requested in minimum amounts of $15,000,000 10,000,000 or a higher multiple of $1,000,000. The proceeds of each Revolving Commitment Increase may be used for any transaction permitted under this Agreement. Any Revolving Commitment Increase may shall be denominated in U.S. Dollars. Each Commitment Increase Notice shall set forth (i) the amount of the Revolving Commitment Increase being requested and (ii) the date on which such Revolving Commitment Increase is requested to become effective.
(bii) The Borrower may seek a Revolving Commitment Increase from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent would be required under Section 11.12(b) 10.12 for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.182.1(f). Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans to be made thereunder, consistent with the provisions set forth in Section 2.18(a2.1(f)(i). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Revolving Commitment Increase, as applicable, or otherwise to effect the provisions of this Section 2.182.1(f), notwithstanding any requirements of Section 11.1210.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Upon the effectiveness of any Revolving Commitment Increase entered into pursuant to this Section 2.18, each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Facility (each, an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Facility Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Facility be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(diii) Upon the effectiveness of any Revolving Commitments Increase entered into pursuant to this Section 2.182.1(f), each Lender with a Revolving Commitment immediately prior to the providing of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment and each Lender with an Incremental Revolving Facility will equal the percentage of the aggregate Revolving Commitments and aggregate commitments under the Incremental Revolving Facilities of all Lenders represented by such Lender’s Revolving Commitment and such Lender’s commitment under the Incremental Revolving Facility, as applicable. If, on the date of the providing of such Incremental Revolving Facility, there are any Revolving Loans outstanding, such Revolving Loans shall, on or prior to the effectiveness of such Incremental Revolving Facility, be prepaid from the proceeds of the Incremental Revolving Loans made hereunder (reflecting such commitments under the Incremental Revolving Facility), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.042.9. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(eiv) Notwithstanding the foregoing, the effectiveness of any Revolving Commitment Increase under this Section 2.18 2.1(f) shall be subject to the following conditions precedent: (A) satisfaction of all conditions precedent in Section 4.2, (B) such increase must be permitted by the conditionsABL/Term Intercreditor Agreement, including (C) the terms Borrower shall deliver to the Administrative Agent a certificate dated as of Section 11.31the effective date of such Revolving Commitment Increase signed by the chief financial officer or an officer with similar responsibilities of the Borrower certifying that the Fixed Charge Coverage Ratio calculated on a Pro Forma Basis is not less than 1.0 to 1.0, (D) the satisfaction of any other conditions as agreed between the lenders providing such Revolving Commitment Increase and the Borrower and, (E) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officer’s certificates and/or reaffirmation agreements consistent with those delivered on the Closing Agreement Date under Section 4.01 4.1 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion utilized generally in connection with similar credit facilities).
(f) Notwithstanding anything to the contrary in this Section 2.18, the Revolving Commitment Increase may be in the form of a separate “first-in, last out” tranche (the “FILO Tranche”) with a separate borrowing base against the Borrowing Base Assets and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin of other Loans pursuant to clause (a) above) among the Borrower, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries of the Borrower other than the Guarantors; (2) if the FILO Tranche availability exceeds $0, any Revolving Borrowing thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) the Borrower may not prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase) shall, subject to the terms of the ABL/Bond Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (5) no changes affecting the priority status of the Loans (other than the FILO Tranche), on the one hand, and the FILO Tranche, on the other hand, may be made without the consent of the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase), other than such changes which affect only the FILO Tranche.
(gv) This Section 2.18 2.1(f) shall supersede any provisions in this Agreement Section 2.10 to the contrary, including Sections 2.16 or 11.12. For the avoidance of doubt, any of the provisions of this Section 2.18 may be amended with the consent of the Required Lenders, the Administrative Agent and the Borrower.
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Sources: Credit Agreement (Installed Building Products, Inc.)
Revolving Commitment Increases. (a) Borrower shall have At any time and from time to time during the rightAvailability Period, but not in any event, no more than two times during the obligationAvailability Period, after the Closing DateParent Borrower may, upon by notice to the Administrative Agent (an “Commitment Increase Notice”whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request to request an increase add one or more increases in the aggregate commitments under the Initial Revolving Facility (which may, at the election of Borrower, include a proportionate increase to the LC Commitment Amount and, with the consent amount of the Swing Line Lender, the Swing Line Commitment) Revolving Commitments (eacheach such increase, a “Revolving Commitment Increase”, and the loans thereunder, “Incremental Revolving Loans;” the facility in connection therewith a “Incremental Revolving Facility”) by an aggregate amount of up having terms identical to the greater of $500,000,000 and 50.0% of Consolidated EBITDA for the most recently ended Test Period as of such time; existing Revolving Commitments, provided that at the time of each such request and upon the effectiveness of each Commitment Increase Amendment (i) no commitment of any Lender may be increased without the consent of such Lender, (ii) no Event of Default then exists or would result immediately after giving effect thereto (other than in connection with a Limited Condition Acquisitionas defined below), (iiia) no Default has occurred and is continuing or shall result therefrom, (b) the Incremental Revolving Loans (A) Parent Borrower shall be guaranteed by in compliance on a pro forma basis with the Guarantors covenant contained in Section 6.12 recomputed as of the last day of the most-recently ended fiscal quarter of the Parent Borrower and (c) the Parent Borrower shall rank pari passu in right have delivered a certificate of (1) priority with respect a Financial Officer to the Collateral effect set forth in clauses (a) and (2b) payment above, together with respect reasonably detailed calculations demonstrating compliance with clause (b) above. Notwithstanding anything to the Obligations in respect of the Commitments in effect prior to the Revolving Commitment Increase and (B) shall be on terms and pursuant to the documentation applicable to the existing Commitments or otherwise acceptable to the Administrative Agent (it being understood that terms not substantially identical to the Revolving Facility which are applicable only after the then-existing Revolving Facility Termination Date are acceptable); provided that the Applicable Revolving Loan Margin relating to the Incremental Revolving Loans may be less thancontrary herein, the same or exceed the Applicable Revolving Loan Margin relating to the Commitments in effect prior to the Closing Date aggregate principal amount of the Revolving Commitment Increase so long as, in the event that the Effective Yield for such Incremental Revolving Loans is greater than the Effective Yield applicable to all Revolving Loans immediately prior to the effective date of the Revolving Commitment Increase by more than 0.50% per annum, then the Effective Yield for such Revolving Loans Increases shall be increased to the extent necessary so that the Effective Yield for such Revolving Loans is equal to the Effective Yield for such Incremental Revolving Loans minus 0.50% per annum, and (iv) the not exceed $40,000,000. Each Revolving Commitment Increase shall be requested in minimum amounts of $15,000,000 or a higher an integral multiple of $1,000,000. The proceeds 2,000,000 and be in an aggregate principal amount that is not less than $15,000,000, provided that such amount may be less than $15,000,000 if such amount represents all the remaining availability under the aggregate principal amount of each Revolving Commitment Increase may be used for any transaction permitted under this Agreement. Any Revolving Commitment Increase may be denominated in U.S. Dollars. Each Commitment Increase Notice shall Increases set forth (i) the amount of the Revolving Commitment Increase being requested and (ii) the date on which such Revolving Commitment Increase is requested to become effectiveabove.
(b) The Each notice from the Parent Borrower may seek a pursuant to this Section 2.21 shall set forth the requested amount of the relevant Revolving Commitment Increases and shall provide that to the extent any Revolving Commitment Increase from existing Lenders (each of which relates to a Lender’s Canadian Revolving Sub-Commitment, any Loans made pursuant thereto shall be entitled made by the Lender’s Canadian Lending Office unless the applicable Lender has delivered to agree or decline the Canadian Subsidiary Borrower a notice pursuant to participate Section 9.21 in its sole discretion) and respect thereof. Any additional banksbank, financial institutions institution, existing Lender or other Person that elects to extend an Revolving Commitment Increase shall be reasonably satisfactory to the Parent Borrower, the Administrative Agent and the Issuing Bank (any such bank, financial institution, existing Lender or other institutional lenders who will Person being called an “Additional Lender”) and, if not already a Lender, shall become Incremental Revolving Credit Lendersa Lender under this Agreement pursuant to an amendment (a “Commitment Increase Amendment”) to this Agreement and, as applicableappropriate, in connection therewith. The the other Loan Documents, executed by Holdings, the Parent Borrower, each Incremental Revolving Credit such Additional Lender and the Administrative Agent and, Agent. No Lender shall be obligated to provide any Revolving Commitment Increase unless it so agrees. Commitments in respect of any Revolving Commitment Increase shall become Commitments (or in the Swing Line Lender and each LC Issuer, case of any Revolving Commitment Increase to the extent their consent would be required under Section 11.12(b) for provided by an assignment of Loans or Commitments, as applicable, to such Additional existing Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans to be made thereunder, consistent with the provisions set forth increase in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Revolving Commitment Increaseof such Lender) under this Agreement. A Commitment Increase Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as applicablemay be necessary or appropriate, or otherwise in the opinion of the Administrative Agent, to effect the provisions of this Section 2.182.21. The effectiveness of any Commitment Increase Amendment shall, notwithstanding any requirements of Section 11.12. Any such deemed amendment may be memorialized in writing unless otherwise agreed to by the Administrative Agent and the Borrower and furnished Additional Lenders, be subject to the other parties heretosatisfaction of each of the conditions set forth in Section 4.02 on the date thereof. The proceeds of any Revolving Commitment Increases will be used only for working capital and general corporate purposes and to finance any Permitted Acquisition.
(c) Upon the effectiveness of any each Revolving Commitment Increase entered into pursuant to this Section 2.182.21, (i) each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Facility (each, an “Incremental Revolving Facility Additional Lender”) in respect of such increase, and each such Incremental Revolving Facility Additional Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s (x) Canadian Revolving Sub-Commitment and (y) participations hereunder in outstanding Letters of Credit and Swing Swingline Loans such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of participationsassumption, the percentage of the aggregate outstanding (A) Canadian Revolving Sub-Commitments, (B) outstanding participations hereunder in Letters of Credit and (BC) outstanding participations hereunder in Swing Loans Swingline Loans, in each case held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Facility Additional Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. IfApplicable Percentage and (ii) if, on the date of such increaseRevolving Commitment Increase, there are any Revolving Loans outstanding or amounts owing in respect of such Class outstandingoutstanding B/A Drawings, such Revolving Loans and amounts owing in respect of outstanding B/A Drawings shall on or prior to the effectiveness of such Incremental Revolving Facility Commitment Increase be prepaid from the proceeds of additional Revolving Loans made and B/As accepted and purchased hereunder (reflecting such increase in Revolving Commitments of such ClassCommitment Increase), which prepayment shall (x) be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.042.16 and (y) in the case of outstanding B/A Drawings, be done in accordance with Section 2.11(e). The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(d) Upon the effectiveness of any Revolving Commitments Increase entered into pursuant to this Section 2.18, each Lender with a Revolving Commitment immediately prior to the providing of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment and each Lender with an Incremental Revolving Facility will equal the percentage of the aggregate Revolving Commitments and aggregate commitments under the Incremental Revolving Facilities of all Lenders represented by such Lender’s Revolving Commitment and such Lender’s commitment under the Incremental Revolving Facility, as applicable. If, on the date of the providing of such Incremental Revolving Facility, there are any Revolving Loans outstanding, such Revolving Loans shall, on or prior to the effectiveness of such Incremental Revolving Facility, be prepaid from the proceeds of the Incremental Revolving Loans made hereunder (reflecting such commitments under the Incremental Revolving Facility), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(e) Notwithstanding the foregoing, the effectiveness of any Revolving Commitment Increase under this Section 2.18 shall be subject to the satisfaction of the conditions, including the terms of Section 11.31, as agreed between the lenders providing such Revolving Commitment Increase and the Borrower and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officer’s certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion utilized generally in connection with similar credit facilities).
(f) Notwithstanding anything to the contrary in this Section 2.18, the Revolving Commitment Increase may be in the form of a separate “first-in, last out” tranche (the “FILO Tranche”) with a separate borrowing base against the Borrowing Base Assets and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin of other Loans pursuant to clause (a) above) among the Borrower, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries of the Borrower other than the Guarantors; (2) if the FILO Tranche availability exceeds $0, any Revolving Borrowing thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) the Borrower may not prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase) shall, subject to the terms of the ABL/Bond Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (5) no changes affecting the priority status of the Loans (other than the FILO Tranche), on the one hand, and the FILO Tranche, on the other hand, may be made without the consent of the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase), other than such changes which affect only the FILO Tranche.
(g) This Section 2.18 shall supersede any provisions in this Agreement to the contrary, including Sections 2.16 or 11.12. For the avoidance of doubt, any of the provisions of this Section 2.18 may be amended with the consent of the Required Lenders, the Administrative Agent and the Borrower.
Appears in 1 contract
Revolving Commitment Increases. (a) Borrower In the event that the Company wishes to increase the total US Tranche Revolving Commitment or the total Multicurrency Tranche Revolving Commitment at any time and from time to time when no Default or Event of Default has occurred and is continuing, it shall have the right, but not the obligation, after the Closing Date, upon notice to notify the Administrative Agent in writing of the amount (an the “Offered Increase Amount”) of such proposed increase (each such notice, a “Revolving Commitment Increase Notice”), to request an increase in the aggregate commitments under the Initial Revolving Facility (which . The Company may, at the election of Borrowerits election, include a proportionate increase from time to the LC Commitment Amount and, with the consent of the Swing Line Lender, the Swing Line Commitment) (each, a “Revolving Commitment Increase”, and the loans thereunder, “Incremental Revolving Loans;” the facility in connection therewith a “Incremental Revolving Facility”) by an aggregate amount of up to the greater of $500,000,000 and 50.0% of Consolidated EBITDA for the most recently ended Test Period as of such time; provided that time (i) no commitment offer one or more of any Lender may be increased without the consent Revolving Lenders of such Lender, the applicable Class the opportunity to provide all or a portion of the Offered Increase Amount pursuant to paragraph (c) below and/or (ii) no Event offer one or more Revolving Lenders of Default then exists any other Class, Term Lenders, additional banks, financial institutions or would result immediately after giving effect thereto (other than in connection with a Limited Condition Acquisition), (iii) the Incremental Revolving Loans (A) shall be guaranteed by the Guarantors and shall rank pari passu in right of (1) priority with respect to the Collateral and (2) payment with respect to the Obligations in respect of the Commitments in effect prior to the Revolving Commitment Increase and (B) shall be on terms and pursuant to the documentation applicable to the existing Commitments or otherwise entities reasonably acceptable to the Administrative Agent (it being understood that terms not substantially identical the opportunity to the Revolving Facility which are applicable only after the then-existing Revolving Facility Termination Date are acceptable); provided that the Applicable Revolving Loan Margin relating to the Incremental Revolving Loans may be less than, the same provide all or exceed the Applicable Revolving Loan Margin relating to the Commitments in effect prior to the Closing Date a portion of the Revolving Commitment Offered Increase so long as, in the event that the Effective Yield for such Incremental Revolving Loans is greater than the Effective Yield applicable Amount pursuant to all Revolving Loans immediately prior to the effective date of the Revolving Commitment Increase by more than 0.50% per annum, then the Effective Yield for such Revolving Loans shall be increased to the extent necessary so that the Effective Yield for such Revolving Loans is equal to the Effective Yield for such Incremental Revolving Loans minus 0.50% per annum, and paragraph (ivb) the Revolving Commitment Increase shall be requested in minimum amounts of $15,000,000 or a higher multiple of $1,000,000. The proceeds of each Revolving Commitment Increase may be used for any transaction permitted under this Agreement. Any Revolving Commitment Increase may be denominated in U.S. Dollarsbelow. Each Revolving Commitment Increase Notice shall set forth (i) specify which Revolving Lenders and/or Term Lenders, banks, financial institutions or other entities the amount of Company desires to provide such Offered Increase Amount. The Company or, if requested by the Revolving Commitment Increase being requested and (ii) Company, the date on which Administrative Agent, will notify such Revolving Commitment Increase is requested to become effectiveLenders, and/or Term Lenders, banks, financial institutions or other entities of such offer.
(b) The Borrower may seek Any Revolving Lender of another Class, Term Lender, additional bank, financial institution or other entity which the Company selects to offer participation in the increased Revolving Commitments of any Class and which elects to become a Revolving Commitment Increase from existing Lenders (each Lender of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent would be required such Class under Section 11.12(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans to be made thereunder, consistent with the provisions set forth in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Revolving Commitment Increase, as applicable, or otherwise to effect the provisions of this Section 2.18, notwithstanding any requirements of Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Upon the effectiveness of any Revolving Commitment Increase entered into pursuant to this Section 2.18, each Lender with obtain a Revolving Commitment of such Class immediately prior in an amount so offered and accepted by it pursuant to subsection 2.10(a)(ii) shall execute a New Revolving Lender Supplement with the Borrowers and the Administrative Agent, substantially in the form of Exhibit F hereto, whereupon such increase will automatically and without further act be deemed to have assigned to each Lender providing Revolving Lender, Term Lender, additional bank, financial institution or other entity (herein called a portion of the Incremental “New Revolving Facility (each, an “Incremental Revolving Facility Lender”) in respect shall become a Revolving Lender of such increaseClass for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Any Revolving Lender which accepts an offer to it by the Company to increase its Revolving Commitment pursuant to subsection 2.10(a)(i) shall, in each case, execute a Revolving Commitment Increase Supplement with the Borrowers and each the Administrative Agent, substantially in the form of Exhibit G hereto, whereupon such Incremental Lender shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Revolving Facility Commitment as so increased.
(d) If any Revolving Lender, Term Lender, additional bank, financial institution or other entity becomes a New Revolving Lender will automatically and without further act be deemed of any Class pursuant to have assumedsubsection 2.10(b), a portion or any Revolving Lender’s Revolving Commitment of any Class is increased pursuant to subsection 2.10(c), additional Revolving Loans of such Lender’s participations hereunder Class made on or after the effectiveness thereof (the “Credit Re-Allocation Date”) shall be made pro rata based on the Revolving Commitment Percentages of such Class in outstanding Letters effect on and after such Credit Re-Allocation Date. In the event that on any such Credit Re-Allocation Date there is an unpaid principal amount of Credit any Revolving Loans of such Class, the Borrowers shall make prepayments thereof and Swing borrowings of Revolving Loans of such Class so that, after giving effect to each such deemed assignment and assumption of participationsthereto, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Facility Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Facility be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, outstanding are held pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(d) Upon the effectiveness of any Revolving Commitments Increase entered into pursuant to this Section 2.18, each Lender with a based on such new Revolving Commitment immediately prior to the providing Percentages of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment and each Lender with an Incremental Revolving Facility will equal the percentage of the aggregate Revolving Commitments and aggregate commitments under the Incremental Revolving Facilities of all Lenders represented by such Lender’s Revolving Commitment and such Lender’s commitment under the Incremental Revolving Facility, as applicable. If, on the date of the providing of such Incremental Revolving Facility, there are any Revolving Loans outstanding, such Revolving Loans shall, on or prior to the effectiveness of such Incremental Revolving Facility, be prepaid from the proceeds of the Incremental Revolving Loans made hereunder (reflecting such commitments under the Incremental Revolving Facility), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceClass.
(e) Notwithstanding anything to the foregoingcontrary in this subsection 2.10, in no event shall any transaction be effected pursuant to this subsection 2.10, (i) that would increase the effectiveness aggregate amount of any the total Revolving Commitment Commitments by an amount greater than the Maximum Increase under this Section 2.18 Amount, as calculated immediately prior to such transaction, (ii) unless no Default or Event of Default shall have occurred and be continuing (or would occur after giving effect to such transaction), (iii) unless the Company and its Subsidiaries shall be subject in pro forma compliance with each of the financial covenants specified in subsection 8.1, and (iv) unless each of the representations and warranties made by the Borrowers in or pursuant to this Agreement or any of the other Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date (except to the satisfaction of the conditionsextent any such representations and warranties relate, including the terms of Section 11.31, as agreed between the lenders providing such Revolving Commitment Increase and the Borrower andby their terms, to a specific date, in which case such representations and warranties shall be true and correct in all material respects on and as of such specific date).
(f) To the extent reasonably requested by the Administrative Agent, receipt it shall be a condition precedent to any increase in the Revolving Commitments pursuant to this subsection 2.10 that the Administrative Agent shall have received on or prior to the Credit Re-Allocation Date, for the benefit of the Lenders, (i) legal opinions of counsel to the Borrowers covering such matters as are customary for transactions of this type and such other matters as may be reasonably requested by the Administrative Agent and (ii) any other certificates or documents that the Administrative Agent shall reasonably request, each in form and substance reasonably satisfactory to the Administrative Agent. Increases in the Revolving Commitments in accordance with this subsection 2.10 will not require the consent of legal opinions, board resolutions, officer’s certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion utilized generally in connection with similar credit facilities).
(f) Majority Lenders. Notwithstanding anything to the contrary in this Section 2.18Agreement, if any Revolving Lender, Term Lender, additional bank, financial institution or other entity becomes a New Revolving Lender of any Class pursuant to subsection 2.10(b) or any Lender’s Revolving Commitment of any Class is increased pursuant to subsection 2.10(c), (i) increases in the Revolving Commitment Increase may Applicable Margin and Facility Fees applicable to such Lender’s Revolving Commitments of such Class and (ii) increases in fees payable to, or the inclusion of new fees to be payable to, such Lenders shall be permitted by this Agreement, provided that (A) such increases shall be effective in respect of all Revolving Commitments of such Class and (B) such increases in fees and/or new fees shall be payable to all Revolving Lenders of such Class (without duplication, in the form case of a separate “first-inRevolving Lenders that become New Revolving Lenders), last out” tranche (the “FILO Tranche”) with a separate borrowing base against the Borrowing Base Assets and interest rate margins in each case to be agreed upon (whichas if all Revolving Lenders of such Class had become New Revolving Lenders of such Class or increased their Revolving Commitments of such Class, for as the avoidance of doubt, shall not require any adjustment to the Applicable Margin of other Loans pursuant to clause (a) above) among the Borrower, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche case may not be guaranteed by any Subsidiaries of the Borrower other than the Guarantors; (2) if the FILO Tranche availability exceeds $0, any Revolving Borrowing thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) the Borrower may not prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase) shall, subject to the terms of the ABL/Bond Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (5) no changes affecting the priority status of the Loans (other than the FILO Tranche)be, on the one hand, and the FILO Tranche, on the other hand, may be made without the consent of the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase), other than such changes which affect only the FILO Trancheapplicable Credit Re-Allocation Date.
(g) This Section 2.18 shall supersede any provisions The Administrative Agent will notify all Lenders of each increase in Revolving Commitments pursuant to this Agreement subsection.
(h) Notwithstanding anything in subsection 11.1 to the contrary, including Sections 2.16 or 11.12. For the avoidance of doubtAdministrative Agent, any at the request of the provisions of Borrower, shall, and is hereby expressly permitted to, amend the Loan Documents to the extent necessary to (A) give effect to any increases pursuant to this Section 2.18 may be amended with the consent of the Required Lenders, the Administrative Agent and the Borrowersubsection 2.10 or (B) implement any mechanical changes necessary or advisable in connection therewith.
Appears in 1 contract
Sources: Multi Currency Credit Agreement (Harman International Industries Inc /De/)
Revolving Commitment Increases. (a) Borrower shall have the right, but not the obligation, after the Closing Date, upon notice to the Administrative Agent (an “Commitment Increase Notice”), to request an increase in the aggregate commitments under the Initial Revolving Facility (which may, at the election of Borrower, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender, the Swing Line Commitment) (each, a “Revolving Commitment Increase”, and the loans thereunder, “Incremental Revolving Loans;” the facility in connection therewith a “Incremental Revolving Facility”) by an aggregate amount of up to the greater of $500,000,000 and 50.0% of Consolidated EBITDA for the most recently ended Test Period as of such time; provided that (i) no commitment of any Lender may be increased without the consent of such Lender, (ii) no Event of Default then exists or would result immediately after giving effect thereto (other than in connection with a Limited Condition Acquisition), (iii) the Incremental Revolving Loans (A) shall be guaranteed by the Guarantors and shall rank pari passu in right of (1) priority with respect to the Collateral and (2) payment with respect to the Obligations in respect of the Commitments in effect prior to the Revolving Commitment Increase and (B) shall be on terms and pursuant to the documentation applicable to the existing Commitments or otherwise acceptable to the Administrative Agent (it being understood that terms not substantially identical to the Revolving Facility which are applicable only after the then-existing Revolving Facility Termination Date are acceptable); provided that the Applicable Revolving Loan Margin relating to the Incremental Revolving Loans may be less than, the same or exceed the Applicable Revolving Loan Margin relating to the Commitments in effect prior to the Closing Date of the Revolving Commitment Increase so long as, in the event that the Effective Yield for such Incremental Revolving Loans is greater than the Effective Yield applicable to all Revolving Loans immediately prior to the effective date of the Revolving Commitment Increase by more than 0.50% per annum, then the Effective Yield for such Revolving Loans shall be increased to the extent necessary so that the Effective Yield for such Revolving Loans is equal to the Effective Yield for such Incremental Revolving Loans minus 0.50% per annum, and (iv) the Revolving Commitment Increase shall be requested in minimum amounts of $15,000,000 or a higher multiple of $1,000,000. The proceeds of each Revolving Commitment Increase may be used for any transaction permitted under this Agreement. Any Revolving Commitment Increase may be denominated in U.S. Dollars. Each Commitment Increase Notice shall set forth (i) the amount of the Revolving Commitment Increase being requested and (ii) the date on which such Revolving Commitment Increase is requested to become effective.
(b) The Borrower may seek a Revolving Commitment Increase from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent would be required under Section 11.12(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans to be made thereunder, consistent with the provisions set forth in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Revolving Commitment Increase, as applicable, or otherwise to effect the provisions of this Section 2.18, notwithstanding any requirements of Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Upon the effectiveness of any Revolving Commitment Increase entered into pursuant to this Section 2.18, each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Facility (each, an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Facility Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Facility be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(d) Upon the effectiveness of any Revolving Commitments Increase entered into pursuant to this Section 2.18, each Lender with a Revolving Commitment immediately prior to the providing of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment and each Lender with an Incremental Revolving Facility will equal the percentage of the aggregate Revolving Commitments and aggregate commitments under the Incremental Revolving Facilities of all Lenders represented by such Lender’s Revolving Commitment and such Lender’s commitment under the Incremental Revolving Facility, as applicable. If, on the date of the providing of such Incremental Revolving Facility, there are any Revolving Loans outstanding, such Revolving Loans shall, on or prior to the effectiveness of such Incremental Revolving Facility, be prepaid from the proceeds of the Incremental Revolving Loans made hereunder (reflecting such commitments under the Incremental Revolving Facility), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(e) Notwithstanding the foregoing, the effectiveness of any Revolving Commitment Increase under this Section 2.18 shall be subject to the satisfaction of the conditions, including the terms of Section 11.31, as agreed between the lenders providing such Revolving Commitment Increase and the Borrower and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officer’s certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion utilized generally in connection with similar credit facilities).
(f) Notwithstanding anything to the contrary in this Section 2.18, the Revolving Commitment Increase may be in the form of a separate “first-in, last out” tranche (the “FILO Tranche”) with a separate borrowing base against the Borrowing Base Assets and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin of other Loans pursuant to clause (a) above) among the Borrower, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries of the Borrower other than the Guarantors; (2) if the FILO Tranche availability exceeds $0, any Revolving Borrowing thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) the Borrower may not prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase) shall, subject to the terms of the ABL/Bond Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (5) no changes affecting the priority status of the Loans (other than the FILO Tranche), on the one hand, and the FILO Tranche, on the other hand, may be made without the consent of the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase), other than such changes which affect only the FILO Tranche.
(g) This Section 2.18 shall supersede any provisions in this Agreement to the contrary, including Sections 2.16 or 11.12. For the avoidance of doubt, any of the provisions of this Section 2.18 may be amended with the consent of the Required Lenders, the Administrative Agent and the Borrower.
Appears in 1 contract
Revolving Commitment Increases. (a) Borrower shall have the right, but not the obligation, At any time after the Closing Date, upon provided that no Event of Default shall have occurred and be continuing, the Borrowers may request an increase of the Revolving Commitments in an aggregate amount up to $500,000,000 by notice to the Administrative Agent in writing of the amount (an the “Offered Increase Amount”) of such proposed increase (such notice, a “Revolving Commitment Increase Notice”). The Borrowers may offer to any Bank or any bank or other financial institution that is not an existing Bank the opportunity to provide a new Revolving Commitment pursuant to paragraph (b) below, which other bank or other financial institution shall be subject to request an increase in the aggregate commitments under the Initial Revolving Facility (which may, at the election of Borrower, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender, the Swing Line Commitment) (each, a “Revolving Commitment Increase”, and the loans thereunder, “Incremental Revolving Loans;” the facility in connection therewith a “Incremental Revolving Facility”) by an aggregate amount of up to the greater of $500,000,000 and 50.0% of Consolidated EBITDA for the most recently ended Test Period as of such time; provided that (i) no commitment of any Lender may be increased without the consent of such Lender, (ii) no Event of Default then exists or would result immediately after giving effect thereto (other than in connection with a Limited Condition Acquisition), (iii) the Incremental Revolving Loans (A) shall be guaranteed by the Guarantors and shall rank pari passu in right of (1) priority with respect to the Collateral and (2) payment with respect to the Obligations in respect of the Commitments in effect prior to the Revolving Commitment Increase and (B) shall be on terms and pursuant to the documentation applicable to the existing Commitments or otherwise acceptable to the Administrative Agent (it being understood that terms which consent shall not substantially identical to the Revolving Facility which are applicable only after the then-existing Revolving Facility Termination Date are acceptablebe unreasonably withheld or delayed); provided that the Applicable Revolving Loan Margin relating to the Incremental Revolving Loans may be less than, the same or exceed the Applicable Revolving Loan Margin relating to the Commitments in effect prior to the Closing Date of the Revolving Commitment Increase so long as, in the event that the Effective Yield for such Incremental Revolving Loans is greater than the Effective Yield applicable to all Revolving Loans immediately prior to the effective date of the Revolving Commitment Increase by more than 0.50% per annum, then the Effective Yield for such Revolving Loans shall be increased to the extent necessary so that the Effective Yield for such Revolving Loans is equal to the Effective Yield for such Incremental Revolving Loans minus 0.50% per annum, and (iv) the Revolving Commitment Increase shall be requested in minimum amounts of $15,000,000 or a higher multiple of $1,000,000. The proceeds of each Revolving Commitment Increase may be used for any transaction permitted under this Agreement. Any Revolving Commitment Increase may be denominated in U.S. Dollars. Each Commitment Increase Notice shall set forth (i) the amount of the Revolving Commitment Increase being requested and (ii) the date on which such Revolving Commitment Increase is requested to become effective.
(b) The Borrower may seek Any additional bank or financial institution that the Borrowers select to offer the opportunity to provide any portion of the increased Revolving Commitments, and that elects to become a party to this Agreement and provide a Revolving Commitment Increase from existing Lenders (each of which Commitment, shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower, each Incremental Revolving Credit Lender execute a New Bank Supplement with the Borrowers and the Administrative Agent andAgent, substantially in the Swing Line Lender form of Exhibit K (a “New Bank Supplement”), whereupon such bank or financial institution (a “New Bank”) shall become a Bank for all purposes and each LC Issuer, to the same extent their consent would as if originally a party hereto and shall be required under Section 11.12(b) for an assignment of Loans or Commitments, as applicable, bound by and entitled to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms benefits of this Section 2.18. Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans to be made thereunder, consistent with the provisions set forth in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement and Schedule I shall be deemed to be amended to add the extent (but only to the extent) necessary to reflect the existence name and terms Revolving Commitment of such New Bank, provided that the Revolving Commitment Increase, as applicable, or otherwise to effect the provisions of this Section 2.18, notwithstanding any requirements of Section 11.12. Any such deemed amendment may New Bank shall be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties heretoa principal amount not less than $10,000,000.
(c) Upon Any Bank that accepts an offer to it by the effectiveness of any Borrowers to increase its Revolving Commitment pursuant to this subsection 2.10 shall, in each case, execute a Revolving Commitment Increase entered into pursuant Supplement with the Borrowers and the Administrative Agent, substantially in the form of Exhibit L (a “Revolving Commitment Increase Supplement”), whereupon such Bank (an “Increasing Bank”) shall be bound by and entitled to the benefits of this Section 2.18Agreement with respect to the full amount of its Revolving Commitment as so increased, each Lender with a and Schedule I shall be deemed to be amended to so increase the Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Facility (each, an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Facility Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Facility be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceBank.
(d) Upon the The effectiveness of any Revolving Commitments Increase entered into pursuant to this Section 2.18, each Lender with a Revolving Commitment immediately prior to the providing of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment and each Lender with an Incremental Revolving Facility will equal the percentage of the aggregate Revolving Commitments and aggregate commitments under the Incremental Revolving Facilities of all Lenders represented by such Lender’s Revolving Commitment and such Lender’s commitment under the Incremental Revolving Facility, as applicable. If, on the date of the providing of such Incremental Revolving Facility, there are any Revolving Loans outstanding, such Revolving Loans shall, on New Bank Supplement or prior to the effectiveness of such Incremental Revolving Facility, be prepaid from the proceeds of the Incremental Revolving Loans made hereunder (reflecting such commitments under the Incremental Revolving Facility), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(e) Notwithstanding the foregoing, the effectiveness of any Revolving Commitment Increase under this Section 2.18 Supplement shall be subject to the satisfaction of the conditions, including the terms of Section 11.31, as agreed between the lenders providing such Revolving Commitment Increase and the Borrower and, to the extent reasonably requested by the Administrative Agent, contingent upon receipt by the Administrative Agent of legal opinions, board resolutions, officer’s certificates and/or reaffirmation agreements consistent with those delivered on such corporate resolutions of the Closing Date under Section 4.01 (other than changes to such Borrowers and legal opinions resulting from a change in law, change in fact or change of counsel to counsel’s form of opinion utilized generally in connection the Borrowers as the Administrative Agent shall reasonably request with similar credit facilities)respect thereto.
(fe) Notwithstanding anything (i) Except as otherwise provided in subparagraphs (ii) and (iii) of this paragraph (e), if any bank or financial institution becomes a New Bank pursuant to subsection 2.10(b) or any Bank’s Revolving Commitment is increased pursuant to subsection 2.10(c), additional Committed Rate Loans made on or after the contrary date of the effectiveness thereof (the “Re-Allocation Date”) shall be made in this Section 2.18, accordance with the pro rata provisions of subsection 8.3 based on the Revolving Commitment Increase Percentages (or relevant Foreign Currency Revolving Commitment Percentages, as the case may be be) in the form of a separate “firsteffect on and after such Re-in, last out” tranche Allocation Date (the “FILO Tranche”) with a separate borrowing base against the Borrowing Base Assets and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment except to the Applicable Margin extent that any such pro rata borrowings would result in any Bank making an aggregate principal amount of other Committed Rate Loans pursuant in excess of its Revolving Commitment (or relevant Foreign Currency Revolving Commitment Percentages, as the case may be), in which case such excess amount will be allocated to, and made by, the relevant New Banks and Increasing Banks to clause the extent of, and in accordance with the pro rata provisions of subsection 8.3 based on, their respective Revolving Commitments (a) above) among or relevant Foreign Currency Revolving Commitments, as the Borrowercase may be)). On each Re-Allocation Date, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries shall deliver a notice to each Bank of the Borrower other than the Guarantors; (2) if the FILO Tranche availability exceeds $0, any Revolving Borrowing thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) the Borrower may not prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders (calculated as including Lenders under any adjusted Revolving Commitment Increase) shall, subject Percentages after giving effect to any increase in the terms of the ABL/Bond Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (5) no changes affecting the priority status of the Loans (other than the FILO Tranche), Revolving Commitments made pursuant to this subsection 2.10 on the one hand, and the FILO Tranche, on the other hand, may be made without the consent of the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase), other than such changes which affect only the FILO TrancheRe-Allocation Date.
(g) This Section 2.18 shall supersede any provisions in this Agreement to the contrary, including Sections 2.16 or 11.12. For the avoidance of doubt, any of the provisions of this Section 2.18 may be amended with the consent of the Required Lenders, the Administrative Agent and the Borrower.
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Revolving Commitment Increases. (a) Borrower shall have the right, but not the obligation, after the Closing Date, upon notice to the Administrative Agent (an “Commitment Increase Notice”), to request an increase in the aggregate commitments under the Initial Revolving Facility (which may, at the election of Borrower, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender, the Swing Line Commitment) (each, a “Revolving Commitment Increase”, and the loans thereunder, “Incremental Revolving Loans;” the facility in connection therewith a “Incremental Revolving Facility”) by an aggregate amount of up to the greater of $500,000,000 and 50.0% of Consolidated EBITDA for the most recently ended Test Period as of such time; provided that (i) no commitment of any Lender may be increased without the consent of such Lender, (ii) no Event of Default then exists or would result immediately after giving effect thereto (other than in connection with a Limited Condition Acquisition), (iii) the Incremental Revolving Loans (A) shall be guaranteed by the Guarantors and shall rank pari passu in right of (1) priority with respect to the Collateral and (2) payment with respect to the Obligations in respect of the Commitments in effect prior to the Revolving Commitment Increase and (B) shall be on terms and pursuant to the documentation applicable to the applicable existing Commitments or otherwise acceptable to the Administrative Agent (it being understood that terms not substantially identical to the Revolving Facility which are applicable only after the applicable then-existing Revolving Facility Termination Date are acceptable); provided that the Applicable Revolving Loan Margin relating to the Incremental Revolving Loans may be less than, the same or exceed the Applicable Revolving Loan Margin relating to the Commitments in effect prior to the Closing Date of the Revolving Commitment Increase so long as, in the event that the Effective Yield for such Incremental Revolving Loans is greater than the Effective Yield applicable to all Revolving Loans immediately prior to the effective date of the Revolving Commitment Increase by more than 0.50% per annum, then the Effective Yield for such Revolving Loans shall be increased to the extent necessary so that the Effective Yield for such Revolving Loans is equal to the Effective Yield for such Incremental Revolving Loans minus 0.50% per annum, and (iv) the Revolving Commitment Increase shall be requested in minimum amounts of $15,000,000 or a higher multiple of $1,000,000. The proceeds of each Revolving Commitment Increase may be used for any transaction permitted under this Agreement. Any Revolving Commitment Increase may be denominated in U.S. Dollars. Each Commitment Increase Notice shall set forth (i) the amount of the Revolving Commitment Increase being requested and (ii) the date on which such Revolving Commitment Increase is requested to become effective.
(b) The Borrower may seek a Revolving Commitment Increase from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent would be required under Section 11.12(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans to be made thereunder, consistent with the provisions set forth in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Revolving Commitment Increase, as applicable, or otherwise to effect the provisions of this Section 2.18, notwithstanding any requirements of Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Upon the effectiveness of any Revolving Commitment Increase entered into pursuant to this Section 2.18, each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Facility (each, an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Lender▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Facility Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender▇▇▇▇▇▇’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Facility be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(d) Upon the effectiveness of any Revolving Commitments Increase entered into pursuant to this Section 2.182.18 with respect to any Class, each Lender with a Revolving Commitment with respect to such Class immediately prior to the providing of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment and each Lender with an Incremental Revolving Facility will equal the percentage of the aggregate Revolving Commitments and aggregate commitments under the Incremental Revolving Facilities of all Lenders represented by such Lender▇▇▇▇▇▇’s Revolving Commitment and such Lender▇▇▇▇▇▇’s commitment under the Incremental Revolving Facility, as applicable. If, on the date of the providing of such Incremental Revolving Facility, there are any Revolving Loans outstanding, such Revolving Loans shall, on or prior to the effectiveness of such Incremental Revolving Facility, be prepaid from the proceeds of the Incremental Revolving Loans made hereunder (reflecting such commitments under the Incremental Revolving Facility), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(e) Notwithstanding the foregoing, the effectiveness of any Revolving Commitment Increase under this Section 2.18 shall be subject to the satisfaction of the conditions, including the terms of Section 11.31, as agreed between the lenders providing such Revolving Commitment Increase and the Borrower and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officer’s certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion utilized generally in connection with similar credit facilities).
(f) Notwithstanding anything to the contrary in this Section 2.18, the Revolving Commitment Increase may be in the form of a separate “first-first- in, last out” tranche (the “FILO Tranche”) with a separate borrowing base against the Borrowing Base Assets and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Revolving Loan Margin of other Loans pursuant to clause (a) above) among the Borrower, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries of the Borrower other than the Guarantors; (2) if the FILO Tranche availability exceeds $0, any Revolving Borrowing thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) the Borrower may not prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase) shall, subject to the terms of the ABL/Bond Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (5) no changes affecting the priority status of the Loans (other than the FILO Tranche), on the one hand, and the FILO Tranche, on the other hand, may be made without the consent of the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase), other than such changes which affect only the FILO Tranche.
(g) This Section 2.18 shall supersede any provisions in this Agreement to the contrary, including Sections 2.16 or 11.12. For the avoidance of doubt, any of the provisions of this Section 2.18 may be amended with the consent of the Required Lenders, the Administrative Agent and the Borrower.
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Revolving Commitment Increases. (a) Borrower shall have the right, but not the obligation, after the Closing Date, upon notice to the Administrative Agent (an “Commitment Increase Notice”), to request an increase in the aggregate commitments under the Initial Revolving Facility (which may, at the election of Borrower, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender, the Swing Line Commitment) (each, a “Revolving Commitment Increase”, and the loans thereunder, “Incremental Revolving Loans;” the facility in connection therewith a “Incremental Revolving Facility”) by an aggregate amount of up to the greatest of (i) the Suppressed Availability as of such time and (ii) 100% of the greater of $500,000,000 and 50.0% of of(x) the Reference Amount and (y) Consolidated EBITDA for the most recently ended Test Period as of such time; provided that (i) no commitment of any Lender may be increased without the consent of such Lender, (ii) no Event of Default then exists or would result immediately after giving effect thereto (other than in connection with a Limited Condition AcquisitionAcquisitionTransaction ), (iii) the Incremental Revolving Loans (A) shall be guaranteed by the Guarantors and shall rank pari passu in right of (1) priority with respect to the Collateral and (2) payment with respect to the Obligations in respect of the Commitments in effect prior to the Revolving Commitment Increase and (B) shall be on terms and pursuant to the documentation applicable to the applicable existing Commitments or otherwise acceptable to the Administrative Agent (it being understood that terms not substantially identical to the Revolving Facility which are applicable only after the applicable then-existing Revolving Facility Termination Date are acceptable); provided that the Applicable Revolving Loan Margin relating to the Incremental Revolving Loans may be less than, the same or exceed the Applicable Revolving Loan Margin relating to the Commitments in effect prior to the Closing Date of the Revolving Commitment Increase so long as, in the event that the Effective Yield for such Incremental Revolving Loans is greater than the Effective Yield applicable to all Revolving Loans immediately prior to the effective date of the Revolving Commitment Increase by more than 0.50% per annum, then the Effective Yield for such Revolving Loans shall be increased to the extent necessary so that the Effective Yield for such Revolving Loans is equal to the Effective Yield for such Incremental Revolving Loans minus 0.50% per annum, and (iv) the Revolving Commitment Increase shall be requested in minimum amounts of $15,000,000 or a higher multiple of $1,000,000. The proceeds of each Revolving Commitment Increase may be used for any transaction permitted under this Agreement. Any Revolving Commitment Increase may be denominated in U.S. Dollars. Each Commitment Increase Notice shall set forth (i) the amount of the Revolving Commitment Increase being requested and (ii) the date on which such Revolving Commitment Increase is requested to become effective.
(b) The Borrower may seek a Revolving Commitment Increase from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent would be required under Section 11.12(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans to be made thereunder, consistent with the provisions set forth in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Revolving Commitment Increase, as applicable, or otherwise to effect the provisions of this Section 2.18, notwithstanding any requirements of Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Upon the effectiveness of any Revolving Commitment Increase entered into pursuant to this Section 2.18, each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Facility (each, an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Lender▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Facility Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender▇▇▇▇▇▇’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Facility be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(d) Upon the effectiveness of any Revolving Commitments Increase entered into pursuant to this Section 2.182.18 with respect to any Class, each Lender with a Revolving Commitment with respect to such Class immediately prior to the providing of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment and each Lender with an Incremental Revolving Facility will equal the percentage of the aggregate Revolving Commitments and aggregate commitments under the Incremental Revolving Facilities of all Lenders represented by such Lender▇▇▇▇▇▇’s Revolving Commitment and such Lender▇▇▇▇▇▇’s commitment under the Incremental Revolving Facility, as applicable. If, on the date of the providing of such Incremental Revolving Facility, there are any Revolving Loans outstanding, such Revolving Loans shall, on or prior to the effectiveness of such Incremental Revolving Facility, be prepaid from the proceeds of the Incremental Revolving Loans made hereunder (reflecting such commitments under the Incremental Revolving Facility), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(e) Notwithstanding the foregoing, the effectiveness of any Revolving Commitment Increase under this Section 2.18 shall be subject to the satisfaction of the conditions, including the terms of Section 11.31, as agreed between the lenders providing such Revolving Commitment Increase and the Borrower and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officer’s certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion utilized generally in connection with similar credit facilities).
(f) Notwithstanding anything to the contrary in this Section 2.18, the Revolving Commitment Increase may be in the form of a separate “first-in, last out” tranche (the “FILO Tranche”) with a separate borrowing base against the Borrowing Base Assets and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Revolving Loan Margin of other Loans pursuant to clause (a) above) among the Borrower, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries of the Borrower other than the Guarantors; (2) if the FILO Tranche availability exceeds $0, any Revolving Borrowing thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) the Borrower may not prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase) shall, subject to the terms of the ABL/Bond Intercreditor Agreement, control exercise of remedies in respect of the Collateral and and, (5) no changes affecting the priority status of the Loans (other than the FILO Tranche), on the one hand, and the FILO Tranche, on the other hand, may be made without the consent of the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase), other than such changes which affect only the FILO Tranche. and (6) the advance rates for any category of assets in the definition of Borrowing Base Assets relating to the FILO Tranches shall not, when taken together with the advance rates for the corresponding categories in the Borrowing Base for Revolving Loans and any other FILO Tranches, exceed 100% with respect to such category of assets.
(g) This Section 2.18 shall supersede any provisions in this Agreement to the contrary, including Sections 2.16 or 11.12. For the avoidance of doubt, any of the provisions of this Section 2.18 may be amended with the consent of the Required Lenders, the Administrative Agent and the Borrower.
Appears in 1 contract
Revolving Commitment Increases. (a) At any time and from time to time during the Availability Period, subject to the terms and conditions set forth herein, the Borrower shall have the rightmay, but not the obligation, after the Closing Date, upon by notice to the Administrative Agent (an “Commitment Increase Notice”whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to request an increase in the aggregate commitments under the Initial Revolving Facility (which may, at the election of Borrower, include a proportionate increase to the LC Commitment Amount and, with the consent amount of the Swing Line Lender, the Swing Line Commitment) Revolving Commitments (eacheach such increase, a “Revolving Commitment Increase”), and the loans thereunder, “Incremental Revolving Loans;” the facility in connection therewith a “Incremental Revolving Facility”) by an aggregate amount of up to the greater of $500,000,000 and 50.0% of Consolidated EBITDA for the most recently ended Test Period as of such time; provided that (i) no commitment at the time of any Lender may be increased without each such request and upon the consent effectiveness of such Lendereach Revolving Increase Amendment, (ii) no Event of Default then exists or would result immediately after giving effect thereto (other than in connection with a Limited Condition Acquisition), (iii) the Incremental Revolving Loans (A) no Default has occurred and is continuing or shall result therefrom and (B) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clause (A) above. Notwithstanding anything to the contrary herein, the aggregate principal amount of the Revolving Commitment Increases following the Effective Date shall not exceed $300,000,000. Each Revolving Commitment Increase shall be guaranteed by in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $25,000,000, provided that such amount may be less than $25,000,000 if such amount represents all the Guarantors and remaining availability under the maximum aggregate principal amount of Revolving Commitment Increases set forth above.
(b) Each notice from the Borrower pursuant to this Section 2.20 shall rank pari passu in right set forth the requested amount of (1) priority with respect the relevant Revolving Commitment Increase. Any additional bank, financial institution, existing Lender or other Person that elects to provide a portion of any Revolving Commitment Increase shall be reasonably satisfactory to the Collateral Borrower, the Administrative Agent, each Swingline Lender and each Issuing Bank (2any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) payment with respect and, if not already a Lender, shall become a Lender under this Agreement pursuant to a Revolving Increase Amendment. Each Revolving Commitment Increase shall be effected by an amendment (a “Revolving Increase Amendment”) to this Agreement and, as appropriate, the Obligations other Loan Documents, executed by STX, the Borrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to provide any Revolving Commitment Increase, unless it so agrees. Commitments in respect of any Revolving Commitment Increase shall become Revolving Commitments (or in the Commitments case of any Revolving Commitment Increase to be provided by an existing Lender, an increase in effect prior such Lender’s Revolving Commitment) under this Agreement. If the interest rate on the Revolving Loans to be made pursuant to the Revolving Commitment Increase and (B) shall be on terms and pursuant to the documentation applicable to the existing Commitments or otherwise acceptable to the Administrative Agent (it being understood that terms not substantially identical to the Revolving Facility which are applicable only after the then-existing Revolving Facility Termination Date are acceptable); provided that the Applicable Revolving Loan Margin relating to the Incremental Revolving Loans may be less than, the same or exceed the Applicable Revolving Loan Margin relating to the Commitments in effect prior to the Closing Date of the Revolving Commitment Increase so long as, in the event that the Effective Yield for such Incremental Revolving Loans is greater than the Effective Yield applicable to all Revolving Loans immediately prior to the effective date of the Revolving Commitment Increase by more than 0.50% per annumhigher than the interest rate for the then existing Revolving Loans under this Agreement, then the Effective Yield for interest rate on such existing Revolving Loans shall be increased to the extent necessary so that the Effective Yield for such original Revolving Loans is equal to the Effective Yield for such Incremental Revolving Loans minus bear interest at 0.50% per annumbelow the interest rate on the incremental Revolving Loans. A Revolving Increase Amendment may, and (iv) without the Revolving Commitment Increase shall be requested in minimum amounts consent of $15,000,000 or a higher multiple of $1,000,000. The proceeds of each Revolving Commitment Increase any other Lenders, effect such amendments to any Loan Documents as may be used for any transaction permitted under this Agreement. Any Revolving Commitment Increase may be denominated necessary or appropriate, in U.S. Dollars. Each Commitment Increase Notice shall set forth (i) the amount opinion of the Revolving Commitment Increase being requested and (ii) the date on which such Revolving Commitment Increase is requested to become effective.
(b) The Borrower may seek a Revolving Commitment Increase from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banksAdministrative Agent, financial institutions and other institutional lenders who will become Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent would be required under Section 11.12(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans to be made thereunder, consistent with the provisions set forth in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Revolving Commitment Increase, as applicable, or otherwise to effect the provisions of this Section 2.182.20. The effectiveness of any Revolving Increase Amendment shall, notwithstanding any requirements of Section 11.12. Any such deemed amendment may be memorialized in writing unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, a “Revolving Increase Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Revolving Increase Closing Date). The proceeds of any Loans made pursuant to Revolving Commitment Increases will be used only for working capital and other general corporate purposes of the Borrower and furnished to the other parties heretoits subsidiaries.
(c) Upon the effectiveness of any each Revolving Commitment Increase entered into pursuant to this Section 2.182.20, (i) each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Facility (each, an “Incremental Revolving Facility Additional Lender”) in respect of such increase, and each such Incremental Revolving Facility Additional Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Swingline Loans such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Swingline Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Facility Additional Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. IfApplicable Percentage and (ii) if, on the date of such increaseRevolving Commitment Increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Facility be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such ClassCommitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.042.15. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(d) Upon the effectiveness of any Revolving Commitments Increase entered into pursuant to this Section 2.18, each Lender with a Revolving Commitment immediately prior to the providing of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment and each Lender with an Incremental Revolving Facility will equal the percentage of the aggregate Revolving Commitments and aggregate commitments under the Incremental Revolving Facilities of all Lenders represented by such Lender’s Revolving Commitment and such Lender’s commitment under the Incremental Revolving Facility, as applicable. If, on the date of the providing of such Incremental Revolving Facility, there are any Revolving Loans outstanding, such Revolving Loans shall, on or prior to the effectiveness of such Incremental Revolving Facility, be prepaid from the proceeds of the Incremental Revolving Loans made hereunder (reflecting such commitments under the Incremental Revolving Facility), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(e) Notwithstanding the foregoing, the effectiveness of any Revolving Commitment Increase under this Section 2.18 shall be subject to the satisfaction of the conditions, including the terms of Section 11.31, as agreed between the lenders providing such Revolving Commitment Increase and the Borrower and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officer’s certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion utilized generally in connection with similar credit facilities).
(f) Notwithstanding anything to the contrary in this Section 2.18, the Revolving Commitment Increase may be in the form of a separate “first-in, last out” tranche (the “FILO Tranche”) with a separate borrowing base against the Borrowing Base Assets and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin of other Loans pursuant to clause (a) above) among the Borrower, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries of the Borrower other than the Guarantors; (2) if the FILO Tranche availability exceeds $0, any Revolving Borrowing thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) the Borrower may not prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase) shall, subject to the terms of the ABL/Bond Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (5) no changes affecting the priority status of the Loans (other than the FILO Tranche), on the one hand, and the FILO Tranche, on the other hand, may be made without the consent of the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase), other than such changes which affect only the FILO Tranche.
(g) This Section 2.18 shall supersede any provisions in this Agreement to the contrary, including Sections 2.16 or 11.12. For the avoidance of doubt, any of the provisions of this Section 2.18 may be amended with the consent of the Required Lenders, the Administrative Agent and the Borrower.
Appears in 1 contract
Revolving Commitment Increases. (ai) Borrower shall have the right, but not the obligation, after the Closing Agreement Date, upon notice to the Administrative Agent (an a “Commitment Increase Notice”), to request an increase in the aggregate commitments under the Initial Revolving Facility (which may, at the election of Borrower, include a proportionate increase to the LC Letter of Credit Commitment Amount and, with the consent of the Swing Line Lender, the include a proportionate increase to Swing Line Commitment) (each, a “Revolving Commitment Increase”, and the loans thereunder, “Incremental Revolving Loans;” the facility in connection therewith a “Incremental Revolving Facility”) (with Administrative Agent’s consent thereto not to be unreasonably withheld or delayed) by an aggregate amount of up to the greater of $500,000,000 and 50.0% of Consolidated EBITDA for the most recently ended Test Period as of such time50,000,000; provided that (iA) no commitment of any Lender may be increased without the consent of such Lender, (iiB) no Event of Default then exists or would result immediately after giving effect thereto (other than in connection with a Limited Condition Acquisition)thereto, (iiiC) the Incremental Revolving Loans (A1) shall be guaranteed by the Guarantors and shall rank pari passu in right of (1x) priority with respect to the Collateral and (2y) payment with respect to the Obligations in respect of the Commitments in effect prior to the Revolving Commitment Increase and (B2) shall be on terms and pursuant to the documentation applicable to the existing Commitments or otherwise acceptable to the Administrative Agent (it being understood that terms not substantially identical to the Revolving Facility which are applicable only after the then-existing Revolving Facility Termination Maturity Date are acceptable); provided that the Applicable Revolving Loan Margin relating to the Incremental Revolving Loans may be less than, the same or exceed the Applicable Revolving Loan Margin relating to the Commitments in effect prior to the Closing Date of the Revolving Commitment Increase so long as, in the event that the Effective Yield for such Incremental Revolving Loans is greater than the Effective Yield applicable to all Revolving Loans immediately prior to the effective date of the Revolving Commitment Increase by more than 0.50% per annum, then the Effective Yield for such Revolving Loans shall be increased (D) to the extent necessary so that any Real Property secures the Effective Yield for such Revolving Loans is equal Obligations, flood insurance diligence and documentation have been completed as required by all Flood Insurance Laws or otherwise in a manner satisfactory to the Effective Yield for such Incremental Revolving Loans minus 0.50% per annumall Lenders, and (ivE) the Revolving Commitment Increase shall be requested in minimum amounts of $15,000,000 10,000,000 or a higher multiple of $1,000,0001,000,000 and (F) no Revolving Commitment Increase shall cause the Revolving Loan Commitments after giving effect to such Revolving Commitment Increase to exceed 90% of the greater of clauses (i) and (ii) of the Maximum ABL Facility Amount (as defined in the ABL/Term Intercreditor Agreement) at such time. The proceeds of each Revolving Commitment Increase may be used for any transaction permitted under this Agreement. Any Revolving Commitment Increase may shall be denominated in U.S. Dollars. Each Commitment Increase Notice shall set forth (i) the amount of the Revolving Commitment Increase being requested and (ii) the date on which such Revolving Commitment Increase is requested to become effective.
(bii) The Borrower may seek a Revolving Commitment Increase from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders reasonably acceptable to the Administrative Agent who will become Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent would be required under Section 11.12(b) 10.12 for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.182.1(f). Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans to be made thereunder, consistent with the provisions set forth in Section 2.18(a2.1(f)(i). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Revolving Commitment Increase, as applicable, or otherwise to effect the provisions of this Section 2.182.1(f), notwithstanding any requirements of Section 11.1210.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Upon the effectiveness of any Revolving Commitment Increase entered into pursuant to this Section 2.18, each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Facility (each, an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Facility Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Facility be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(diii) Upon the effectiveness of any Revolving Commitments Increase entered into pursuant to this Section 2.182.1(f), each Lender with a Revolving Commitment immediately prior to the providing of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment and each Lender with an Incremental Revolving Facility will equal the percentage of the aggregate Revolving Commitments and aggregate commitments under the Incremental Revolving Facilities of all Lenders represented by such Lender’s Revolving Commitment and such Lender’s commitment under the Incremental Revolving Facility, as applicable. If, on the date of the providing of such Incremental Revolving Facility, there are any Revolving Loans outstanding, such Revolving Loans shall, on or prior to the effectiveness of such Incremental Revolving Facility, be prepaid from the proceeds of the Incremental Revolving Loans made hereunder (reflecting such commitments under the Incremental Revolving Facility), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.042.9. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(eiv) Notwithstanding the foregoing, the effectiveness of any Revolving Commitment Increase under this Section 2.18 2.1(f) shall be subject to the following conditions precedent: (A) satisfaction of all conditions precedent in Section 4.2, (B) such increase must be permitted by the conditionsABL/Term Intercreditor Agreement, including (C) the terms Borrower shall deliver to the Administrative Agent a certificate dated as of Section 11.31the effective date of such Revolving Commitment Increase signed by the chief financial officer or an officer with similar responsibilities of the Borrower certifying that the Fixed Charge Coverage Ratio calculated on a Pro Forma Basis is not less than 1.0 to 1.0, (D) the satisfaction of any other conditions as agreed between the lenders providing such Revolving Commitment Increase and the Borrower and, (E) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officer’s certificates and/or reaffirmation agreements consistent with those delivered on the Closing Agreement Date under Section 4.01 4.1 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion utilized generally in connection with similar credit facilities).
(f) Notwithstanding anything to the contrary in this Section 2.18, the Revolving Commitment Increase may be in the form of a separate “first-in, last out” tranche (the “FILO Tranche”) with a separate borrowing base against the Borrowing Base Assets and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin of other Loans pursuant to clause (a) above) among the Borrower, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries of the Borrower other than the Guarantors; (2) if the FILO Tranche availability exceeds $0, any Revolving Borrowing thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) the Borrower may not prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase) shall, subject to the terms of the ABL/Bond Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (5) no changes affecting the priority status of the Loans (other than the FILO Tranche), on the one hand, and the FILO Tranche, on the other hand, may be made without the consent of the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase), other than such changes which affect only the FILO Tranche.
(gv) This Section 2.18 2.1(f) shall supersede any provisions in this Agreement Section 2.10 to the contrary, including Sections 2.16 or 11.12. For the avoidance of doubt, any of the provisions of this Section 2.18 may be amended with the consent of the Required Lenders, the Administrative Agent and the Borrower.
Appears in 1 contract
Sources: Credit Agreement (Installed Building Products, Inc.)
Revolving Commitment Increases. (a) The Parent Borrower shall have the rightmay from time to time (and more than one time), but not the obligation, after the Closing Date, upon by written notice to the Administrative Agent (an “Commitment Increase Notice”which shall promptly deliver a copy to each of the Lenders), to request an increase in that the aggregate commitments under the Initial Revolving Facility (which may, at the election of Borrower, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender, the Swing Line Commitment) (each, a “Revolving Commitment Increase”, and the loans thereunder, “Incremental Revolving Loans;” the facility in connection therewith a “Incremental Revolving Facility”) Commitments be increased by an aggregate amount of up to the greater of not less than $500,000,000 and 50.0% of Consolidated EBITDA 15,000,000 for the most recently ended Test Period as of any such time; provided that (i) no commitment of any Lender may be increased without the consent of such Lenderincrease, (ii) no Event of Default then exists or would result immediately after giving effect thereto (other than in connection with a Limited Condition Acquisition), (iii) the Incremental Revolving Loans (A) shall be guaranteed by the Guarantors and shall rank pari passu in right of (1) priority with respect to the Collateral and (2) payment with respect to the Obligations in respect of the Commitments in effect prior to the Revolving Commitment Increase and (B) shall be on terms and pursuant to the documentation applicable to the existing Commitments or otherwise acceptable to the Administrative Agent (it being understood that terms not substantially identical to the Revolving Facility which are applicable only after the then-existing Revolving Facility Termination Date are acceptable); provided that the Applicable Revolving Loan Margin relating to the Incremental Revolving Loans may be less than, the same or exceed the Applicable Revolving Loan Margin relating to the Commitments in effect prior to the Closing Date of the Revolving Commitment Increase so long as, in the event that the Effective Yield for such Incremental Revolving Loans is greater than the Effective Yield applicable to all Revolving Loans immediately prior to the effective date of the Revolving Commitment Increase by more than 0.50% per annum, then the Effective Yield for such Revolving Loans shall be increased except to the extent necessary so that to utilize the Effective Yield for such Revolving Loans is equal to the Effective Yield for such Incremental Revolving Loans minus 0.50% per annum, and (iv) the Revolving Commitment Increase shall be requested in minimum amounts remaining unused amount of $15,000,000 or a higher multiple of $1,000,000. The proceeds of each Revolving Commitment Increase may be used for any transaction increase permitted under this AgreementSection 2.18(a), provided that after giving effect to any such increase the sum of the total Revolving Commitments shall not exceed $245,000,000. Any Revolving Commitment Increase may be denominated in U.S. Dollars. Each Commitment Increase Notice Such notice shall set forth (i) the amount of the requested increase in the Revolving Commitment Increase being requested Commitments and (ii) the date on which such Revolving Commitment Increase increase is requested to become effectiveeffective (which shall be not less than ten Business Days or more than 60 days after the date of such notice), and shall offer each Lender (provided that such Lender shall be reasonably satisfactory to the Administrative Agent) the opportunity to increase its Revolving Commitment by such Lender’s Applicable Percentage of the proposed increased amount. Each Lender shall, by notice to the Loan Party Representative and the Administrative Agent given not more than ten days after the date of the Loan Party Representative’s notice, either agree to increase its applicable Revolving Commitment by all or a portion of the offered amount or decline to increase its applicable Commitment (and any Lender that does not deliver such a notice within such period of ten days shall be deemed to have declined to increase its Commitment). In the event that, on the tenth day after the Loan Party Representative shall have delivered a notice pursuant to the first sentence of this paragraph, the Lenders shall have declined to increase their Revolving Commitments or have agreed pursuant to the preceding sentence to increase their Revolving Commitments by an aggregate amount less than the increase in the total Revolving Commitments requested by the Loan Party Representative, the Loan Party Representative may arrange for one or more banks or other financial institutions (any such bank or other financial institution, together with any existing Lender that agrees to increase its applicable Revolving Commitment pursuant to the immediately preceding sentence, being called an “Augmenting Lender”) to provide Revolving Commitments or increase their existing Revolving Commitments in an aggregate amount equal to the unsubscribed amount, provided that each Augmenting Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and shall not be subject to the approval of any other Lenders, and the Loan Party Representative and each Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence the Commitment of such Augmenting Lender and/or its status as a Lender hereunder. Any increase in the aggregate Revolving Commitments may be made in an amount that is less than the increase requested by the Loan Party Representative if the Loan Party Representative is unable to arrange for, or chooses not to arrange for, Augmenting Lenders.
(b) The Borrower may seek a Revolving Commitment Increase from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent would be required under Section 11.12(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans to be made thereunder, consistent with the provisions set forth in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental increase in the aggregate Revolving Credit Assumption AgreementCommitments pursuant to this Section 2.18 (the “Revolving Commitment Increase”), this Agreement shall may be amended (such amendment, a “Commitment Increase Amendment”) without the consent of any Lenders to the extent (but only to the extent) necessary to reflect the existence and terms of the Revolving Commitment Increase, Increase evidenced thereby as applicable, or otherwise to effect the provisions of this provided for in Section 2.18, notwithstanding any requirements of Section 11.129.02(b). Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Upon the effectiveness of any each Revolving Commitment Increase entered into pursuant to this Section 2.18Section, (i) each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Augmenting Lender providing a portion of the Incremental such Revolving Facility (each, an “Incremental Revolving Facility Lender”) in respect of such increaseCommitment Increase, and each such Incremental Revolving Facility Augmenting Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit Swingline Loans and Swing Loans Overadvances such that, after giving effect to such Revolving Commitment Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit Swingline Loans and (B) participations hereunder in Swing Loans Overadvances held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Facility Augmenting Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. IfApplicable Percentage and (ii) if, on the date of such increaseRevolving Commitment Increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Facility Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such ClassCommitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.042.14. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(dc) Upon the effectiveness of any Increases and new Revolving Commitments Increase entered into created pursuant to this Section 2.18, each Lender with a Revolving Commitment immediately prior to the providing of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment and each Lender with an Incremental Revolving Facility will equal the percentage of the aggregate Revolving Commitments and aggregate commitments under the Incremental Revolving Facilities of all Lenders represented by such Lender’s Revolving Commitment and such Lender’s commitment under the Incremental Revolving Facility, as applicable. If, 2.18 shall become effective on the date of specified in the providing of such Incremental Revolving Facility, there are any Revolving Loans outstanding, such Revolving Loans shall, on or prior to notice delivered by the effectiveness of such Incremental Revolving Facility, be prepaid from the proceeds of the Incremental Revolving Loans made hereunder (reflecting such commitments under the Incremental Revolving Facility), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected Loan Party Representative pursuant to the immediately preceding sentence.
(e) Notwithstanding the foregoing, the effectiveness first sentence of any Revolving Commitment Increase under this Section 2.18 shall be subject to the satisfaction of the conditions, including the terms of Section 11.31, as agreed between the lenders providing such Revolving Commitment Increase and the Borrower and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officer’s certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion utilized generally in connection with similar credit facilities).
(f) Notwithstanding anything to the contrary in this Section 2.18, the Revolving Commitment Increase may be in the form of a separate “first-in, last out” tranche (the “FILO Tranche”) with a separate borrowing base against the Borrowing Base Assets and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin of other Loans pursuant to clause paragraph (a) above) among above or on such other date as agreed upon by the BorrowerLoan Party Representative, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries of the Borrower other than the Guarantors; (2) if the FILO Tranche availability exceeds $0, any Revolving Borrowing thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) the Borrower may not prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase) shall, subject to the terms of the ABL/Bond Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (5) no changes affecting the priority status of the Loans (other than the FILO Tranche), on the one hand, and the FILO Tranche, on the other hand, may be made without the consent of the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase), other than such changes which affect only the FILO Trancheapplicable Augmenting Lenders.
(g) This Section 2.18 shall supersede any provisions in this Agreement to the contrary, including Sections 2.16 or 11.12. For the avoidance of doubt, any of the provisions of this Section 2.18 may be amended with the consent of the Required Lenders, the Administrative Agent and the Borrower.
Appears in 1 contract
Sources: Credit Agreement (Usg Corp)
Revolving Commitment Increases. (a) Borrower shall have the right, but not the obligation, after the Closing Date, upon notice to the Administrative Agent (an “Commitment Increase Notice”), to request an increase in the aggregate commitments under the Initial Revolving Facility (which may, at the election of Borrower, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender, the Swing Line Commitment) (each, a “Revolving Commitment Increase”, and the loans thereunder, “Incremental Revolving Loans;” the facility in connection therewith a “Incremental Revolving Facility”) by an aggregate amount of up to the greater of $500,000,000 and 50.0% of Consolidated EBITDA for the most recently ended Test Period as of such time; provided that (i) no commitment of any Lender may be increased without the consent of such Lender, (ii) no Event of Default then exists or would result immediately after giving effect thereto (other than in connection with a Limited Condition Acquisition), (iii) the Incremental Revolving Loans (A) shall be guaranteed by the Guarantors and shall rank pari passu in right of (1) priority with respect to the Collateral and (2) payment with respect to the Obligations in respect of the Commitments in effect prior to the Revolving Commitment Increase and (B) shall be on terms and pursuant to the documentation applicable to the existing Commitments or otherwise acceptable to the Administrative Agent (it being understood that terms not substantially identical to the Revolving Facility which are applicable only after the then-existing Revolving Facility Termination Date are acceptable); provided that the Applicable Revolving Loan Margin relating to the Incremental Revolving Loans may be less than, the same or exceed the Applicable Revolving Loan Margin relating to the Commitments in effect prior to the Closing Date of the Revolving Commitment Increase so long as, in the event that the Effective Yield for such Incremental Revolving Loans is greater than the Effective Yield applicable to all Revolving Loans immediately prior to the effective date of the Revolving Commitment Increase by more than 0.50% per annum, then the Effective Yield for such Revolving Loans shall be increased to the extent necessary so that the Effective Yield for such Revolving Loans is equal to the Effective Yield for such Incremental Revolving Loans minus 0.50% per annum, and (iv) the Revolving Commitment Increase shall be requested in minimum amounts of $15,000,000 or a higher multiple of $1,000,000. The proceeds of each Revolving Commitment Increase may be used for any transaction permitted under this Agreement. Any Revolving Commitment Increase may be denominated in U.S. Dollars. Each Commitment Increase Notice shall set forth (i) the amount of the Revolving Commitment Increase being requested and (ii) the date on which such Revolving Commitment Increase is requested to become effective.
(b) The Borrower may seek a Revolving Commitment Increase from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent would be required under Section 11.12(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans to be made thereunder, consistent with the provisions set forth in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Revolving Commitment Increase, as applicable, or otherwise to effect the provisions of this Section 2.18, notwithstanding any requirements of Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Upon the effectiveness of any Revolving Commitment Increase entered into pursuant to this Section 2.18, each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Facility (each, an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Facility Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Facility be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(d) Upon the effectiveness of any Revolving Commitments Increase entered into pursuant to this Section 2.18, each Lender with a Revolving Commitment immediately prior to the providing of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment and each Lender with an Incremental Revolving Facility will equal the percentage of the aggregate Revolving Commitments and aggregate commitments under the Incremental Revolving Facilities of all Lenders represented by such Lender’s Revolving Commitment and such Lender’s commitment under the Incremental Revolving Facility, as applicable. If, on the date of the providing of such Incremental Revolving Facility, there are any Revolving Loans outstanding, such Revolving Loans shall, on or prior to the effectiveness of such Incremental Revolving Facility, be prepaid from the proceeds of the Incremental Revolving Loans made hereunder (reflecting such commitments under the Incremental Revolving Facility), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(e) Notwithstanding the foregoing, the effectiveness of any Revolving Commitment Increase under this Section 2.18 shall be subject to the satisfaction of the conditions, including the terms of Section 11.31, as agreed between the lenders providing such Revolving Commitment Increase and the Borrower and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officer’s certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion utilized generally in connection with similar credit facilities).
(f) Notwithstanding anything to the contrary in this Section 2.18, the Revolving Commitment Increase may be in the form of a separate “first-in, last out” tranche (the “FILO Tranche”) with a separate borrowing base against the Borrowing Base Assets and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Revolving Loan Margin of other Loans pursuant to clause (a) above) among the Borrower, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries of the Borrower other than the Guarantors; (2) if the FILO Tranche availability exceeds $0, any Revolving Borrowing thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) the Borrower may not prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase) shall, subject to the terms of the ABL/Bond Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (5) no changes affecting the priority status of the Loans (other than the FILO Tranche), on the one hand, and the FILO Tranche, on the other hand, may be made without the consent of the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase), other than such changes which affect only the FILO Tranche.
(g) This Section 2.18 shall supersede any provisions in this Agreement to the contrary, including Sections 2.16 or 11.12. For the avoidance of doubt, any of the provisions of this Section 2.18 may be amended with the consent of the Required Lenders, the Administrative Agent and the Borrower.
Appears in 1 contract
Revolving Commitment Increases. (a) Borrower shall have the right, but not the obligation, after the Closing Date, upon notice to the Administrative Agent (an “Commitment Increase Notice”), to request an increase in the aggregate commitments under the theany Initial Revolving Facility (which may, at the election of Borrower, include a proportionate increase to the LC Commitment Amount and, with the consent of the Swing Line Lender, the Swing Line Commitment) (each, a “Revolving Commitment Increase”, and the loans thereunder, “Incremental Revolving Loans;” the facility in connection therewith a “Incremental Revolving Facility”) by an aggregate amount of up to the greater of $500,000,000 and 50.0% of Consolidated EBITDA for the most recently ended Test Period as of such time; provided that (i) no commitment of any Lender may be increased without the consent of such Lender, (ii) no Event of Default then exists or would result immediately after giving effect thereto (other than in connection with a Limited Condition Acquisition), (iii) the Incremental Revolving Loans (A) shall be guaranteed by the Guarantors and shall rank pari passu in right of (1) priority with respect to the Collateral and (2) payment with respect to the Obligations in respect of the Commitments in effect prior to the Revolving Commitment Increase and (B) shall be on terms and pursuant to the documentation applicable to the applicable existing Commitments or otherwise acceptable to the Administrative Agent (it being understood that terms not substantially identical to the Revolving Facility which are applicable only after the applicable then-existing Revolving Facility Termination Date are acceptable); provided that the Applicable Revolving Loan Margin relating to the Incremental Revolving Loans may be less than, the same or exceed the Applicable Revolving Loan Margin relating to the Commitments in effect prior to the Closing Date of the Revolving Commitment Increase so long as, in the event that the Effective Yield for such Incremental Revolving Loans is greater than the Effective Yield applicable to all Revolving Loans immediately prior to the effective date of the Revolving Commitment Increase by more than 0.50% per annum, then the Effective Yield for such Revolving Loans shall be increased to the extent necessary so that the Effective Yield for such Revolving Loans is equal to the Effective Yield for such Incremental Revolving Loans minus 0.50% per annum, and (iv) the Revolving Commitment Increase shall be requested in minimum amounts of $15,000,000 or a higher multiple of $1,000,000. The proceeds of each Revolving Commitment Increase may be used for any transaction permitted under this Agreement. Any Revolving Commitment Increase may be denominated in U.S. Dollars. Each Commitment Increase Notice shall set forth (i) the amount of the Revolving Commitment Increase being requested and (ii) the date on which such Revolving Commitment Increase is requested to become effective.
(b) The Borrower may seek a Revolving Commitment Increase from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower, each Incremental Revolving Credit Lender and the Administrative Agent and, the Swing Line Lender and each LC Issuer, to the extent their consent would be required under Section 11.12(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender, shall execute and deliver an Incremental Revolving Credit Assumption Agreement having terms and conditions consistent with the terms of this Section 2.18. Each Incremental Revolving Credit Assumption Agreement shall specify the terms of the Incremental Revolving Loans to be made thereunder, consistent with the provisions set forth in Section 2.18(a). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Credit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Credit Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Revolving Commitment Increase, as applicable, or otherwise to effect the provisions of this Section 2.18, notwithstanding any requirements of Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Upon the effectiveness of any Revolving Commitment Increase entered into pursuant to this Section 2.18, each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Facility (each, an “Incremental Revolving Facility Lender”) in respect of such increase, and each such Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed, a portion of such Lender▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Facility Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender▇▇▇▇▇▇’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Facility be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(d) Upon the effectiveness of any Revolving Commitments Increase entered into pursuant to this Section 2.182.18 with respect to any Class, each Lender with a Revolving Commitment with respect to such Class immediately prior to the providing of such Incremental Revolving Facility will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Incremental Revolving Facility in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swing Loans held by each Lender with a Revolving Commitment and each Lender with an Incremental Revolving Facility will equal the percentage of the aggregate Revolving Commitments and aggregate commitments under the Incremental Revolving Facilities of all Lenders represented by such Lender▇▇▇▇▇▇’s Revolving Commitment and such Lender▇▇▇▇▇▇’s commitment under the Incremental Revolving Facility, as applicable. If, on the date of the providing of such Incremental Revolving Facility, there are any Revolving Loans outstanding, such Revolving Loans shall, on or prior to the effectiveness of such Incremental Revolving Facility, be prepaid from the proceeds of the Incremental Revolving Loans made hereunder (reflecting such commitments under the Incremental Revolving Facility), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.04. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(e) Notwithstanding the foregoing, the effectiveness of any Revolving Commitment Increase under this Section 2.18 shall be subject to the satisfaction of the conditions, including the terms of Section 11.31, as agreed between the lenders providing such Revolving Commitment Increase and the Borrower and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officer’s certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion utilized generally in connection with similar credit facilities).
(f) Notwithstanding anything to the contrary in this Section 2.18, the Revolving Commitment Increase may be in the form of a separate “first-in, last out” tranche (the “FILO Tranche”) with a separate borrowing base against the Borrowing Base Assets and interest rate margins in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Revolving Loan Margin of other Loans pursuant to clause (a) above) among the Borrower, the Administrative Agent and the Lenders providing the FILO Tranche so long as (1) any loans under the FILO Tranche may not be guaranteed by any Subsidiaries of the Borrower other than the Guarantors; (2) if the FILO Tranche availability exceeds $0, any Revolving Borrowing thereafter requested shall be made under the FILO Tranche until the FILO Tranche availability no longer exceeds $0; (3) the Borrower may not prepay Revolving Credit Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Loans and/or Reimbursement Obligations (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (4) the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase) shall, subject to the terms of the ABL/Bond Intercreditor Agreement, control exercise of remedies in respect of the Collateral and (5) no changes affecting the priority status of the Loans (other than the FILO Tranche), on the one hand, and the FILO Tranche, on the other hand, may be made without the consent of the Required Lenders (calculated as including Lenders under any Revolving Commitment Increase), other than such changes which affect only the FILO Tranche.
(g) This Section 2.18 shall supersede any provisions in this Agreement to the contrary, including Sections 2.16 or 11.12. For the avoidance of doubt, any of the provisions of this Section 2.18 may be amended with the consent of the Required Lenders, the Administrative Agent and the Borrower.
Appears in 1 contract