Increase in Commitment. (a) The Company may, at its option any time after the 2019 Restatement Effective Date and before the Termination Date, seek to (i) increase the Commitments (any such increase, a “Commitment Increase”) or (ii) establish one or more new term loan commitments (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice to the Administrative Agent; provided that, subject to the calculation adjustments set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, the aggregate principal amount of all Incremental Commitments shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00. (b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments. (c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment. (d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. (e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such efforts.
Appears in 1 contract
Sources: Credit Agreement (Centene Corp)
Increase in Commitment. (a) The Company may, at its option any time after the 2019 Restatement Effective Date and before the Termination Date, seek to (i) increase the Commitments (any such increase, a “Commitment Increase”) or (ii) establish one or more new term loan commitments (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice to the Administrative Agent; provided that, subject to the calculation adjustments set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, the aggregate principal amount of all Incremental Commitments shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when Provided no Unmatured Event of Default or Event of Default has occurred and is continuing continuing, the Borrower and shall specify (i) Parent may, on any Business Day prior to the Termination Date increase the aggregate amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered delivering to the Administrative Agent a document Commitment Amount Increase Request in the form reasonably satisfactory of Exhibit E hereto at least five (5) Business Days prior to the Administrative Agent pursuant desired effective date of such increase (the "Commitment Amount Increase") identifying an additional Bank (or additional Commitment agreed to which be made by any such Incremental Lender states existing Bank) and the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the additional amount of its Commitment); PROVIDED, HOWEVER, that the Parent and Borrower may only request an increase in the aggregate amount of the Commitments if immediately after giving effect to such Term Loan Commitments (which Commitment Amount Increase the aggregate principal amount of the Borrower's obligations owing under the Indenture shall not be less than the Euro equivalent of $25,000,000 or100,000,000; PROVIDED FURTHER that such new or increased Commitment may not be in excess of the difference, if lessany, between $100,000,000 MINUS the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority U.S. Dollar Equivalent of the principal amount of the Commitments or Borrower's obligations owing under the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% Indenture. The amount of the original permitted increase in Commitments shall be calculated using the U.S. Dollar Equivalent of the principal amount redeemed under the Indenture on the date notice of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as redemption is delivered to the holders of the debt outstanding under the Indenture. Upon the effectiveness of thereof, each Incremental Term Loan Amendment.
new Bank (dor, if applicable, each existing Bank which consented to an increase in its Commitment) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term shall advance Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on in an amount sufficient such Increased Amount Date before or that after giving effect to its Loans each Bank shall have outstanding its PRO RATA share of Loans. It shall be a condition to such Incremental Commitments or Incremental Term effectiveness that no Eurocurrency Loans (except in be outstanding on the case date of such effectiveness and that the proceeds of Borrower shall not have terminated any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time portion of the consummation Commitments pursuant to Section 1.13 hereof. The Borrower agrees to pay any fees or expenses of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect relating to any Commitment Amount Increase. Notwithstanding anything herein to the contrary, all Loans no Bank shall have any obligation to increase its Commitment and all such other credit exposure no Bank's Commitment shall be held ratably by the Lenders in proportion to their respective Commitmentsincreased without its consent thereto, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemedBank may at its option, for all purposesunconditionally and without cause, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such effortsits Commitment.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (Jones Lang Lasalle Inc)
Increase in Commitment. (a) The Company may, at its option any time after the 2019 Restatement Effective Date and before the Termination Date, seek to (i) At any time during the Commitment Increase Period, the Borrower may request that the Administrative Agent increase the Commitments Total Commitment Amount by increasing the Maximum Revolving Amount; provided that the aggregate amount of all such increases made pursuant to this Section 2.9(b) shall not exceed One Hundred Fifty Million Dollars (any $150,000,000). Each such increaserequest for an increase shall be in an amount of at least Ten Million Dollars ($10,000,000), and may be made by either (A) increasing, for one or more Lenders, with their prior written consent, their respective Revolving Credit Commitments, or (B) including one or more Additional Lenders, each with a new commitment under the Revolving Credit Commitment, as a party to this Agreement (each an “Commitment IncreaseAdditional Commitment” and, collectively, the “Additional Commitments”). Notwithstanding the foregoing or anything to the contrary set forth herein, the extension of the 2020 Term Loans on the Second Amendment Effective Date shall be deemed to have occurred under this Section 2.9(b). After giving effect thereto, the amount available under this Section 2.9(b) or for future increases shall be Seventy Five Million Dollars ($75,000,000).
(ii) establish one or more new term loan commitments (“Term Loan Commitments” andDuring the Commitment Increase Period, together with any Commitment Increase, all of the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice to Lenders agree that the Administrative Agent; provided that, subject to the calculation adjustments set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, the aggregate principal amount of all Incremental Commitments shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to permit one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each Additional Commitments upon satisfaction of the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loansrequirements: (A) whether such Incremental Term Loans will be part of each Additional Lender, if any, shall execute an existing tranche of Incremental Term Loans or part of a new and separate trancheAdditional Lender Assumption Agreement, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments each Additional Commitment from an Additional Lender, if any, shall be in an amount of such trancheat least Ten Million Dollars ($10,000,000), (C) any amortization applicable the Administrative Agent shall provide to the Incremental Term Loans Borrower and each Lender a revised Schedule 1 to this Agreement, including revised Commitment Percentages for each of the Lenders, if appropriate, at least three Business Days prior to the date of the effectiveness of such trancheAdditional Commitments (each an “Additional Lender Assumption Effective Date”), and (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche Borrower shall execute and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase deliver to the Administrative Agent and the Lenders will have been paid; (iii) the Company such replacement or additional Revolving Credit Notes as shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested required by the Administrative Agent in connection with any such transaction(and requested by the Lenders). The Lenders hereby authorize the Administrative Agent to execute each Additional Lender Assumption Agreement on behalf of the Lenders.
(eiii) Upon On each Additional Lender Assumption Effective Date, the making Lenders shall make adjustments among themselves with respect to the Loans then outstanding and amounts of principal, interest, commitment fees and other amounts paid or payable with respect thereto as shall be necessary, in the opinion of the Administrative Agent, in order to reallocate among such Lenders such outstanding amounts, based on the revised Commitment Percentages and to otherwise carry out fully the intent and terms of this Section 2.9(b) (and the Borrower shall pay to the Lenders any amounts that would be payable pursuant to Section 3.3 hereof if such adjustments among the Lenders would cause a prepayment of one or more Eurocurrency Loans). In connection therewith, it is understood and agreed that the Maximum Revolving Amount of any Incremental Term Loan Lender will not be increased (or decreased except pursuant to subsection (a) hereof) without the effectiveness prior written consent of such Lender. The Borrower shall not request any Incremental increase in the Total Commitment of any Incremental Lender that is not already a Lender Amount pursuant to this SectionSection 2.9(b) if a Default or an Event of Default shall then exist, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunderor, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After after giving pro forma effect to any Commitment Increasesuch increase, all Loans and all such other credit exposure shall be held ratably by would exist. At the Lenders in proportion to their respective Commitments, as revised to reflect the increase in the Commitments. The terms time of any such Commitment Increase increase, at the request of the Administrative Agent, the Credit Parties and the extensions Lenders shall enter into an amendment to evidence such increase and to address related provisions as deemed necessary or appropriate by the Administrative Agent. Upon each increase of credit made pursuant thereto the Maximum Revolving Amount, the Total Commitment Amount shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought increased by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such effortssame amount.
Appears in 1 contract
Increase in Commitment. (a) The Company may, at its option any time after the 2019 Restatement Effective Date and before the Termination Date, seek to (i) increase the Commitments (At any such increase, a “Commitment Increase”) or (ii) establish one or more new term loan commitments (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) time upon written notice to Agent, Borrower may request that the Administrative Agent; provided that, subject Total Commitment Amount be increased by an amount not to the calculation adjustments set forth exceed $200,000,000 in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, the aggregate principal amount of for all Incremental Commitments shall not exceed such increases from the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to Closing Date until the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any last day of the proceeds thereofCommitment Period, provided that (A) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing at the time of such request and on the date of any such increase and (B) Borrower shall specify (i) have delivered to Agent, together with such written notice, a copy of Borrower’s duly adopted corporate resolutions, in form and substance satisfactory to Agent, that authorize the requested increase in the Total Commitment Amount, which resolutions shall be certified by the Secretary of Borrower as being true, correct, complete and in full force and effect. Upon receipt of any such request, Agent shall deliver a copy of such request to each Bank. Borrower shall set forth in such request the amount of such the requested increase in the Total Commitment Increase Amount (which in each case shall not be less than $10,000,000 or, if less, the maximum in a minimum amount of Incremental Commitments remaining to be established hereunderTwenty-Five Million Dollars ($25,000,000)) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after and the date on which such notice increase is delivered requested to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten 10 Business Days nor more than sixty (60) days after the date on which of such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) request and (iii) the identity of each Incremental Lender. Each Incremental Lenderthat, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Dateevent, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement must be at least ninety (an “Incremental Term Loan Amendment”90) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans days prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter Commitment Period), and shall offer each Bank the opportunity to increase its Revolving Commitment. Each Bank shall, by notice to Borrower and Agent given not more than ten (or10) days after the date of Agent’s notice, either agree to increase its Revolving Commitment by all or a portion of the offered amount (each such Bank so agreeing being an “Increasing Bank”) or decline to increase its Revolving Commitment (and any such Bank that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Revolving Commitment and each Bank so declining or being deemed to have declined being a “Non-Increasing Bank”). If, on the 10th day after Agent shall have delivered notice as set forth above, the Increasing Banks shall have agreed pursuant to the preceding sentence to increase their Revolving Commitments by an aggregate amount less than the increase in the Total Commitment Amount requested by Borrower, Borrower may arrange for one or more banks or other entities that are reasonably acceptable to Agent (each such Person so agreeing being an “Augmenting Bank”) so long as such Augmenting Bank shall have a Revolving Commitment of not less than Ten Million Dollars ($10,000,000), and Borrower and each Augmenting Bank shall execute all such documentation as Agent shall reasonably specify to evidence its Revolving Commitment and/or its status as a Bank with a Revolving Commitment hereunder. Any increase in the Total Commitment Amount may be made in an amount that is less than the increase requested by Borrower if Borrower is unable to arrange for, or chooses not to arrange for, Augmenting Banks, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such full amount. If Increasing Banks and/or Augmenting Banks offer Revolving Commitment Increase increases or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loansnew Revolving Commitments, as the case may be, and provided that for purposes in excess of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably aggregate increase amount requested by Borrower, then Agent shall, in consultation with Borrower, determine each such Increasing Bank’s or Augmenting Bank’s percentage of the Administrative Agent in connection with any such transactionincreased amount.
(eii) Upon Each of the making of parties hereto agrees that Agent may, in consultation with Borrower, take any Incremental Term Loan or and all actions as may be reasonably necessary to ensure that after giving effect to any increase in the effectiveness of any Incremental Total Commitment of any Incremental Lender that is not already a Lender Amount pursuant to this Section, such Incremental Lender shall the outstanding Revolving Loans (if any) are held by the Banks with Revolving Commitments in accordance with their new Commitment Percentages. This may be deemed accomplished at the discretion of Agent: (w) by requiring the outstanding Loans to be a “Lender” prepaid with the proceeds of new Loans; (x) by causing the Non-Increasing Banks to assign portions of their outstanding Loans to Increasing Banks and a Lender in respect Augmenting Banks; (y) by permitting the Loans outstanding at the time of Loans of the applicable facility or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the increase in the Commitments. The terms of any such Total Commitment Increase and Amount pursuant to this Section 2.06(b) to remain outstanding until the extensions of credit made pursuant thereto shall be identical to those last days of the respective Interest Periods therefor, even though the Banks would hold such Loans other Commitments and than in accordance with their new Commitment Percentages; or (z) by any combination of the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such effortsforegoing.
Appears in 1 contract
Sources: Credit Agreement (Nordson Corp)
Increase in Commitment. (a) The Company Borrower, on behalf of the Borrower and Guarantors, may, at its option on any time Business Day after the 2019 Restatement Effective Date and before date hereof, request an increase of the Termination Date, seek to (i) increase aggregate amount of the Revolving Credit Commitments (any such increase, each a “Commitment Amount Increase”) or (ii) establish and/or outstanding Term Loans and/or create one or more new additional tranches of term loan commitments loans (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) of an existing each such additional tranche of term loans or a separate increase in an existing tranche of new term loans (any such term loansTerm Loans, the an “Incremental Term LoansLoan”); provided, however, that: (i) upon written notice except as permitted by the final sentence of this Section 2.16, the sum of the aggregate Commitment Amount Increases and Incremental Term Loans effective after the Seventh Amendment Effective Date shall not exceed an amount equal to the sum of (A) the amount of additional Debt that would cause the Total Leverage Ratio as of the four (4) consecutive fiscal quarter period most recently ended prior to the incurrence of such additional Debt for which financial statements have been delivered to the Administrative Agent; provided thatAgent hereunder, subject to the calculation adjustments set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with calculated on a Limited Condition Transaction, the aggregate principal amount of all Incremental Commitments shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that pro forma basis after giving pro forma effect to the incurrence of such additional Debt and assuming that the proposed Commitment Amount Increase or Incremental Commitments Term Loan is fully drawn at such time, not to exceed 3.00 to 1.00 plus (B) $750,000,000; (ii) no approval or consent of any Bank shall be required except the Banks providing such Commitment Amount Increase or Incremental Term Loan and the use consents contemplated by clause (vi) below, (iii) except as permitted by the final sentence of proceeds thereof this Section 2.16(a), any Commitment Amount Increase or issuance of Incremental Term Loans shall be in an aggregate amount for all Banks of not less than $50,000,000 (assuming that or such lesser aggregate amount for all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered Banks as may be acceptable to the Administrative Agent Agent), (iv) no Default shall have occurred and be continuing at the time of the request or the effective date of the Commitment Amount Increase or issuance of Incremental Term Loans or will result therefrom, (v) all representations and warranties contained in connection with a Commitment Increase Article 4 hereof shall be delivered true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) at a the time when no Unmatured Event of Default or Event of Default has occurred such request and is continuing and shall specify (i) on the amount effective date of such Commitment Amount Increase (which shall not be less than $10,000,000 or, if less, the maximum amount or issuance of Incremental Commitments remaining Term Loans (other than representations and warranties that relate to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effectivea specific date, which shall be a date true and correct in all material respects (where not less than ten Business Days after the date on which already qualified by materiality, otherwise in all respects) as of such notice is delivered to date), and (vi) the Administrative Agent (unless otherwise agreed by and, in the Administrative Agent in its sole discretion) and (iii) the identity case of a Commitment Amount Increase, each Incremental Lender to whom the Company proposes any portion Letter of such Commitment Increase be allocated Credit Issuer and the amounts of such allocations. The Administrative AgentSwing Lender, subject to the shall have provided their written consent of the Company, (which consents shall not be unreasonably withheld, may allocate ). Unless the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of Borrower otherwise notifies the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which if all or any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent portion of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment.
(d) Notwithstanding the foregoing, no Incremental Commitments Amount Increases or Incremental Term Loans shall would be made or establishedpermitted under clause (A) above on the applicable date of incurrence, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Commitment Amount Date before or after giving effect to such Incremental Commitments Increases or Incremental Term Loans (except in or the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transactionrelevant portion thereof), in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if as applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” have been incurred in reliance on clause (and a Lender in respect A) above prior to the utilization of Loans any amount available under clause (B) above. Notwithstanding the foregoing clause (a)(i), the Borrower, on behalf of the applicable facility Borrower and Guarantors, may, on any Business Day on or tranche) hereunderprior to the date that is 30 days after the Effective Date, request an increase of the aggregate amount of the Revolving Credit Commitments and/or outstanding Term Loans in an aggregate principal amount not to exceed $500,000,000, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such efforts.event (1) such increases shall not be subject to the limitation on the amount of increases imposed by clause (a)(i) above, (2) such increases shall not count against the $750,000,000 amount specified in clause (a)(i)(B) above, 120175877_7 145870580_7
Appears in 1 contract
Increase in Commitment. (a) The Company may, at its option i. At any time after during the 2019 Restatement Effective Date and before Commitment Increase Period, the Termination Date, seek to Borrower may request that the Administrative Agent (iA) increase the Commitments Maximum Revolving Amount, or (any such increase, B) add a term loan facility to this Agreement (the “Commitment IncreaseAdditional Term Loan Facility”) or (iiwhich Additional Term Loan Facility shall be subject to subsection (c) establish below); provided that the aggregate amount of all increases (revolver and term) made pursuant to this subsection (b) following the establishment of the Project Everest Incremental Revolving Credit Commitments on the Third Amendment Effective Date shall not exceed One Hundred Million Dollars ($100,000,000). Each such request for an increase shall be in an amount of at least Ten Million Dollars ($10,000,000), and may be made by either (1) increasing, for one or more Revolving Lenders, with their prior written consent, their respective Revolving Credit Commitments, (2) adding a new term loan commitments (“commitment for one or more Lenders, with their prior written consent, with respect to the Additional Term Loan CommitmentsFacility, or (3) including one or more Additional Lenders, each with a new commitment under the Revolving Credit Commitment or the Additional Term Loan Facility, as a party to this Agreement (each an “Additional Commitment” and, together with any Commitment Increasecollectively, the “Incremental Additional Commitments”).
ii. During the Commitment Increase Period, all of the Lenders agree that the Administrative Agent, in its sole discretion, may permit one or more Additional Commitments upon satisfaction of the following requirements: (A) each Additional Lender, if any, shall execute an Additional Lender Assumption Agreement, (B) each Additional Commitment from an Additional Lender, if any, shall be in an amount of at least Ten Million Dollars ($10,000,000), (C) the Administrative Agent shall provide to the Borrower and each Lender a revised Schedule 1 to this Agreement, including revised Commitment Percentages for each of the Lenders, if appropriate, at least three Business Days prior to the date of the effectiveness of such Additional Commitments (each an existing tranche of term loans or a separate tranche of new term loans “Additional Lender Assumption Effective Date”), (any such term loans, D) the “Incremental Term Loans”) upon written notice Borrower shall execute and deliver to the Administrative Agent; provided that, subject to Agent and the calculation adjustments set forth in Section 1.3 applicable Lenders such replacement or additional Notes as shall be required by the Administrative Agent (if Notes have been requested by such Lender or Lenders) and (E) solely with respect to any Incremental Term Loans being incurred Additional Commitment in connection with a Limited Condition Transactionthe Project Everest Acquisition, upon satisfaction solely of the Project Everest Acquisition Conditions. The Lenders hereby authorize the Administrative Agent to execute each Additional Lender Assumption Agreement on behalf of the Lenders.
iii. On each Additional Lender Assumption Effective Date, the aggregate principal amount Lenders shall make adjustments among themselves with respect to the Loans then outstanding and amounts of all Incremental Commitments principal, interest, commitment fees and other amounts paid or payable with respect thereto as shall be necessary, in the opinion of the Administrative Agent, in order to reallocate among the applicable Lenders such outstanding amounts, based on the revised Commitment Percentages and to otherwise carry out fully the intent and terms of this Section 2.10(b) (and the Borrower shall pay to the applicable Lenders any amounts that would be payable pursuant to Section 3.3 hereof if such adjustments among the applicable Lenders would cause a prepayment of one or more Fixed Rate Loans). In connection therewith, it is understood and agreed that the Maximum Amount of any Lender will not be increased (or decreased except pursuant to subsection (a) hereof) without the prior written consent of such Lender. Other than with respect to the Project Everest Acquisition, the Borrower shall not exceed the greater request any increase or any addition of a term loan facility pursuant to this subsection (xb) $500,000,000 and (y) such other amount such that if a Default or an Event of Default shall then exist, or, after giving pro forma effect to any such increase, would exist. At the incurrence time of any such Incremental Commitments and increase, at the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each request of the Administrative Agent, each Issuing Lender, the Swing Line Lender Credit Parties and the Company which have expressed a desire Lenders shall enter into an amendment to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender evidence such increase and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default address related provisions as deemed necessary or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed appropriate by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan AmendmentAgent.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such efforts.
Appears in 1 contract
Sources: Credit Agreement (Bel Fuse Inc /Nj)
Increase in Commitment. (a) The Company Provided there exists no Default, the Borrower on behalf of the Borrower and Guarantors may, at its option on any time after the 2019 Restatement Effective Date and before the Termination Date, seek to (i) increase the Commitments (any such increase, a “Commitment Increase”) or (ii) establish one or more new term loan commitments (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice to the Administrative Agent; provided that, subject to the calculation adjustments set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, the aggregate principal amount of all Incremental Commitments shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days Day after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agenthereof, subject to without the consent of any Bank but with the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each written consent of the Administrative Agent, each Issuing Lender, Letter of Credit Issuer and the Swing Line Lender and (which consents shall not be unreasonably withheld or delayed), increase the Company which have expressed aggregate amount of the Commitments by delivering a desire Commitment Amount Increase Request at least five (5) Business Days prior to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender desired effective date of such revised allocations of increase (the Commitments, including the desired increase. No “Commitment Increase shall become effective until each of the Incremental Lenders extending such Amount Increase”) identifying an additional Bank (or additional Commitment Increase agreed to be made by any existing Bank) and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the additional amount of such Term Loan Commitments (which shall not be less than $25,000,000 orits Commitment); provided, if lesshowever, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to increase in the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal aggregate amount of the Commitments or to an amount in excess of U.S. $750,000,000 will require the Incremental Term Loans approval of any tranche maturing the Required Banks; provided further that prior to such dateapproaching an additional Bank, (B) the Borrower shall have scheduled amortization of more than 5% offered to the existing Banks the opportunity to increase their respective Commitments. The effective date of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales Commitment Amount Increase shall be agreed upon by the Borrower and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flowAdministrative Agent. The Administrative Agent shall promptly notify each Lender as to Upon the effectiveness of thereof, each Incremental Term Loan Amendment.
new Bank (dor, if applicable, each existing Bank which consented to an increase in its Commitment) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term shall advance Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on in an amount sufficient such Increased Amount Date before or that after giving effect to its Loan each Bank shall have outstanding its pro rata share of Loans. It shall be a condition to such Incremental Commitments effectiveness that no Euro-Dollar Loans or Incremental Term Euro-Canadian Dollar Loans (except in be outstanding on the case date of such effectiveness and that the proceeds of Borrower shall not have terminated any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time portion of the consummation Commitment pursuant to Section 2.8 hereof. The Borrower agrees to pay any out-of-pocket expenses of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect relating to any Commitment Amount Increase. Notwithstanding anything herein to the contrary, all Loans no Bank shall have any obligation to increase its Commitment and all such other credit exposure no Bank’s Commitment shall be held ratably by the Lenders in proportion to their respective Commitmentsincreased without its consent thereto, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemedBank may at its option, for all purposesunconditionally and without cause, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such effortsits Commitment.
Appears in 1 contract
Increase in Commitment. (a) The Company Borrower, on behalf of the Borrower and Guarantors, may, at its option on any time Business Day after the 2019 Restatement Effective Date and before date hereof, request an increase of the Termination Date, seek to (i) increase aggregate amount of the Revolving Credit Commitments (any such increase, each a “"Commitment Amount Increase”") or (ii) establish and/or outstanding Term Loans and/or create one or more new additional tranches of term loan commitments loans (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) of an existing each such additional tranche of term loans or a separate increase in an existing tranche of new term loans Term Loans, an "Incremental Term Loan"); provided, however, that: (any such term loansi) except as permitted by the final sentence of this Section 2.161., the “sum of the aggregate Commitment Amount Increases and Incremental Term Loans”Loans effective after the Effective Date shall not exceed an amount equal to the sum of (A) upon written notice the amount of additional Debt that would cause the Total Leverage Ratio as of the four (4) consecutive fiscal quarter period most recently ended prior to the incurrence of such additional Debt for which financial statements have been delivered to the Administrative Agent; provided thatAgent hereunder, subject to the calculation adjustments set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with calculated on a Limited Condition Transaction, the aggregate principal amount of all Incremental Commitments shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that pro forma basis after giving pro forma effect to the incurrence of such additional Debt and assuming that the proposed Commitment Amount Increase or Incremental Commitments Term Loan is fully drawn at such time, not to exceed 3.00 to 1.00 plus (B) $750,000,000; (ii) no approval or consent of any Bank shall be required except the Banks providing such Commitment Amount Increase or Incremental Term Loan and the use consents contemplated by clause (vi) below, (iii) except as permitted by the final sentence of proceeds thereof this Section 2.16(a), any Commitment Amount Increase or issuance of Incremental Term Loans shall be in an aggregate amount for all Banks of not less than $50,000,000 (assuming that or such lesser aggregate amount for all amounts thereunder are drawn in full but without netting any Banks as may be acceptable to the Administrative Agent), (iv) no Default shall have occurred and be continuing at the time of the proceeds thereofrequest or the effective date of the Commitment Amount Increase or issuance of Incremental Term Loans or will result therefrom, (v) all representations and warranties contained in Article 4 hereof shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) at the time of such request and on the effective date of such Commitment Amount Increase or issuance of Incremental Term Loans (other than representations and warranties that relate to a specific date, which shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such date), and (vi) the Total Debt Administrative Agent and, in the case of a Commitment Amount Increase, each Letter of Credit Issuer and the Swing Lender, shall have provided their written consent (which consents shall not be unreasonably withheld). Unless the Borrower otherwise notifies the Administrative Agent, if all or any portion of any Commitment Amount Increases or Incremental Term Loans would be permitted under clause (A) above on the applicable date of incurrence, such Commitment Amount Increases or Incremental Term Loans (or the relevant portion thereof), as applicable, shall be deemed to EBITDA Ratio would have been incurred in reliance on clause (A) above prior to the utilization of any amount available under clause (B) above. Notwithstanding the foregoing clause (a)(i), the Borrower, on behalf of the Borrower and Guarantors, may, on any Business Day on or prior to the date that is 30 days after the Effective Date, request an increase of the aggregate amount of the Revolving Credit Commitments and/or outstanding Term Loans in an aggregate principal amount not to exceed 3.50 $500,000,000, and in such event (1) such increases shall not be subject to 1.00the limitation on the amount of increases imposed by clause (a)(i) above, (2) such increases shall not count against the $750,000,000 amount specified in clause (a)(i)(B) above, (3) such increases shall not be subject to the minimum amount limitation specified in clause (a)(iii) above, and (4) such increases shall otherwise be subject to this Section 2.16, as applicable.
(b) Any such In order to request a Commitment Amount Increase or Incremental Term Loan, the Borrower shall deliver written notice delivered to the Administrative Agent at least five (5) Business Days (or such shorter period of time agreed by the Administrative Agent) prior to the desired effective date of such increase identifying one or more existing or additional Banks and the amount of its Commitment Amount Increase or Incremental Term Loan. Upon the effectiveness thereof, the new Banks (or, if applicable, existing Banks) (i) shall advance Loans in an amount sufficient such that after giving effect to its Loans each Bank shall have outstanding its respective Percentage of all Loans of the relevant Credit and (ii) in the case of the Revolving Credit, shall acquire its Revolver Percentage of all participations in Letter of Credit Outstandings and Swing Loans. It shall be a condition to such effectiveness that (i) if any Euro‑Dollar Loans are outstanding on the date of such effectiveness, Section 2.13 shall apply and (ii) in the case of a Commitment Amount Increase, the Borrower shall not have terminated any portion of the Revolving Credit Commitments pursuant to Section 2.8 hereof. The Borrower and each Guarantor agree to deliver to the Administrative Agent such corporate due diligence documents as the Administrative Agent shall reasonably request in connection with a any Commitment Amount Increase. Promptly upon the effectiveness of any Commitment Amount Increase or Incremental Term Loan, the Borrower shall execute and deliver new Notes to each requesting Bank. The effective date of any Commitment Amount Increase or Incremental Term Loan shall be delivered at agreed upon by the Borrower and the Administrative Agent.
(c) Incremental Term Loans of a time when new tranche (i) may be unsecured or may be secured by liens on any or all assets of the Borrower and the Guarantors, as determined by the Borrower and the lenders of the Incremental Term Loans (and if so secured, all Obligations shall be secured equally and ratably by liens on the same assets; provided that, to the extent such Incremental Term Loans (and any replacement financing) are paid and satisfied in full, or any liens granted to secure such Incremental Term Loans (and any replacement financing) are released, the ratable liens granted to secure the other Obligations shall, so long as no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) exists, upon the amount of such Commitment Increase (which shall not Borrower's written request, also be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Companyreleased), (ii) shall rank pari passu in right of payment and of security with the date other Term Loans and Revolving Loans and shall have the same guarantors as the other Term Loans and the Revolving Loans, (eachiii) shall not mature earlier than the latest Extended Maturity Date, (iv) shall not have a lower weighted average life to maturity than the remaining weighted average life to maturity of the outstanding Term Loans, (v) shall have an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered amortization schedule (subject to the Administrative Agent clauses (unless otherwise agreed by the Administrative Agent in its sole discretioniii) and (iiiiv)), provisions relating to optional and, to the extent applied pro rata to the other Term Loans and such Incremental Term Loans, mandatory prepayments (including mandatory repurchase offers), and a Base Rate Margin, a Euro‑Dollar Margin, rate floors, fees, premiums, funding discounts and other pricing terms (including a "MFN clause" allowing for repricing upon incurrence of subsequent Incremental Term Loans) for such Incremental Term Loans as determined by the identity Borrower and the lenders of such Incremental Term Loans (provided that no such amortization schedule shall have the effect of reducing the amortization payments scheduled to be made with respect to other Term Loans), and (vi) may not otherwise have terms and conditions different from those of the other Term Loans and Revolving Loans. Incremental Term Loans consisting of an increase in an existing tranche of Term Loans (i) shall have principal amortization payments based on the remaining quarterly principal amortization payments of such existing tranche of Term Loans as a percentage of the remaining principal amount of such existing tranche of Term Loans at the time of such increase applied to such increase amount (with the intent being that such increase will amortize at the same relative rate as the existing tranche of Term Loans), and (ii) may not otherwise have terms and conditions different from those of the other Term Loans of such tranche. The Borrower will use the proceeds of each Incremental Lender to whom the Company proposes Term Loan for any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined purpose permitted by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new CommitmentsSection 5.8.
(cd) Any such notice delivered to the Administrative Agent Commitments in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event respect of Default any Commitment Amount Increase or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend Loans shall become Commitments under this Agreement pursuant to an amendment agreement (an “"Incremental Term Loan Amendment”") setting forthto this Agreement and, to the extent applicableas appropriate, the following terms of other Credit Documents, executed by the Borrower, each Guarantor, each Bank agreeing to provide such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a Commitment, if any, each new and separate trancheBank, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans)if any, and implementing the Administrative Agent. The Incremental Amendment shall not, except as specified in the preceding sentence, require the consent of any Bank, and may effect such additional amendments to this Agreement and the other Credit Documents as shall may be appropriate necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The Banks hereby authorize the Administrative Agent to execute such other documents, instruments and agreements, including security agreements, as may be necessary in the reasonable opinion of the Administrative Agent to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line LenderAmendment. Except as contemplated by the preceding sentence, the terms The effectiveness of any Incremental Term Loans established under this Section Amendment shall be subject to the same as those of satisfaction on the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent date thereof of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, conditions as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase parties thereto shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transactionagree.
(e) Upon The Borrower agrees to pay any reasonable out‑of‑pocket expenses of the making of Administrative Agent relating to any Commitment Amount Increase, Incremental Term Loan or Incremental Amendment. Notwithstanding anything herein to the effectiveness of contrary, no Bank shall have any obligation to increase its Revolving Credit Commitment or advance Incremental Term Loans and no Bank's Revolving Credit Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunderincreased without its consent thereto, and henceforth shall be entitled to all the rights ofeach Bank may at its option, unconditionally and benefits accruing towithout cause, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in its Revolving Credit Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such effortsadvance Incremental Term Loans.
Appears in 1 contract
Increase in Commitment. (a) The Company may, at its option any time after the 2019 Restatement Effective Date and before the Termination Date, seek to (i) increase the Revolving Commitments (any such increase, a “Commitment Increase”) or (ii) establish one or more new term loan commitments (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice to the Administrative Agent; provided that, subject to the calculation adjustments set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, the aggregate principal amount of all Incremental Commitments (excluding the 2019 Incremental Term Loan Commitments) shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such Term Loan Commitments or revised allocations of the Revolving Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Incremental Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans (other than the 2019 Incremental Term Loans) shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Revolving Commitments or and the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Term Loan Commitments and/or Revolving Commitments, as revised to reflect the increase in the CommitmentsCommitment Increase. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Revolving Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such efforts.
Appears in 1 contract
Sources: Credit Agreement (Centene Corp)
Increase in Commitment. (a) The Company may, at its option any time after the 2019 Restatement Effective Date and before the Termination Date, seek to (i) At any time during the Commitment Increase Period, the Administrative Borrower may request that the Administrative Agent (A) increase the Commitments Revolving Amount, or (B) add an additional term loan facility to this Agreement (the “Additional Term Loan Facility”) which Additional Term Loan Facility shall be subject to subsection (c) below); provided that the aggregate amount of all increases made pursuant to this subsection (b) shall not exceed One Hundred Fifty Million Dollars ($150,000,000) (each such increase in the Revolving Amount and/or Additional Term Loan Facility, an “Increase”). Each such request for an Increase shall be in an amount of at least Five Million Dollars ($5,000,000), increased by increments of One Million Dollars ($1,000,000), and may be made by either (1) increasing, for one or more Lenders, with their prior written consent, their respective Revolving Credit Commitments, (2) adding a new commitment for one or more Lenders, with their prior written consent, with respect to the Additional Term Loan Facility, or (3) including one or more Additional Lenders, each with a new commitment (in a minimum amount of at least Five Million Dollars ($5,000,000)) under the Revolving Credit Commitment or the Additional Term Loan Facility, as a party to this Agreement (each an “Additional Commitment” and, collectively, the “Additional Commitments”). For clarification purposes, nothing contained in this Section 2.10 shall be construed as a commitment by any Lender to make any Additional Commitment and any such increase, commitment by a “Commitment Increase”) or Lender shall be at such ▇▇▇▇▇▇’s sole and absolute discretion.
(ii) establish During the Commitment Increase Period, all of the Lenders agree that the Administrative Agent, in its sole discretion, may permit one or more new term loan commitments Additional Commitments upon satisfaction of the following requirements: (“Term Loan Commitments” andA) each Additional Lender, together with any Commitment Increaseif any, shall execute an Additional Lender Assumption Agreement, (B) the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice Administrative Agent shall provide to the Administrative Agent; provided thatBorrower and each Lender a revised Schedule 1 to this Agreement, subject including revised Commitment Percentages for each of the Lenders, if appropriate, at least three Business Days prior to the calculation adjustments set forth in Section 1.3 date of the effectiveness of such Additional Commitments (each an “Additional Lender Assumption Effective Date”), (C) the Borrowers shall execute and deliver to the Administrative Agent and the applicable Lenders such appropriate replacement or additional Revolving Credit Notes as shall be required by the Administrative Agent (if Notes have been requested by such Lender or Lenders), and (D) the Borrowers shall execute and deliver any other documents, instruments or agreements or such thereof as the Administrative Agent may reasonably require. The Lenders hereby authorize the Administrative Agent to execute each Additional Lender Assumption Agreement on behalf of the Lenders.
(i) On each Additional Lender Assumption Effective Date with respect to any Incremental Term Loans the Commitment being incurred in connection with a Limited Condition Transactionincreased, as appropriate, the aggregate principal amount Lenders shall make adjustments among themselves with respect to the Loans then outstanding and amounts of all Incremental principal, interest, commitment fees and other amounts paid or payable with respect thereto as shall be necessary, in the opinion of the Administrative Agent, in order to reallocate among such Lenders such outstanding amounts, based on the revised Commitment Percentages and to otherwise carry out fully the intent and terms of this Section 2.10(b) (and the Borrowers shall pay to the Lenders any amounts that would be payable pursuant to Section 3.3 hereof if such adjustments among the Lenders would cause a prepayment of one or more Loans). In connection therewith, it is understood and agreed that the Maximum Amount of any Lender will not be increased without the prior written consent of such Lender. The Borrowers shall only be entitled to request an Increase pursuant to this subsection (b) if (i) Borrowers have delivered to the Administrative Agent updated pro forma Projections (after giving effect to the applicable Increase and any projected utilization of any Additional Commitments shall not exceed related thereto) for the greater Credit Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 5.7 for the next four fiscal quarters of (x) $500,000,000 the Parent immediately following the proposed date of the applicable Increase and (yii) such other amount such that no Default or an Event of Default shall then exist, and, after giving pro forma effect to any such Increase would exist. At the incurrence time of any such Incremental Commitments and Increase, at the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each request of the Administrative Agent, each Issuing Lender, the Swing Line Lender Credit Parties and the Company which have expressed a desire Lenders shall enter into an amendment to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender evidence such increase and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form address related provisions as reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default deemed necessary or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed appropriate by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan AmendmentAgent.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such efforts.
Appears in 1 contract
Sources: Credit and Security Agreement (AvidXchange Holdings, Inc.)
Increase in Commitment. (a) The Company may, at its option At any time after prior to the 2019 Restatement Effective Date and before the Revolving Credit Termination Date, seek the Borrower shall have the ability, in consultation with the Administrative Agent, to request increases in the Commitment (each, a “Requested Commitment Increase”); provided that (i) increase the Commitments (no Lender shall have any such increase, a “obligation to participate in any Requested Commitment Increase”) or , (ii) establish one or more new term loan commitments (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice to the Administrative Agent; provided that, subject to the calculation adjustments set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, no event shall the aggregate principal amount of all Incremental Commitments shall not Requested Commitment Increases exceed the greater of $50,000,000, (xiii) $500,000,000 and (y) each such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Requested Commitment Increase shall be delivered at in a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the minimum principal amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum remaining amount of Incremental Commitments remaining permitted pursuant to be established hereunder) sought by the Company, clause (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Companyabove, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2iv) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date have occurred and be continuing or would result from the proposed Requested Commitment Increase, and (v) the Borrower shall have demonstrated pro forma compliance with all financial covenants set forth in Article 9 before or and after giving effect to such Incremental Commitments or Incremental Term Loans Requested Commitment Increase.
(except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(ab) or 13.1(c) at the time of the consummation The Administrative Agent shall promptly give notice of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such requested increase to the Lenders. Each Lender shall notify the Administrative Agent within five (5) Business Days (or such longer period of time which may be agreed upon by the Administrative Agent and the Borrower and communicated to the Lenders) from the date of delivery of such notice to the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effectwhether or not it agrees to increase its Commitment and, if applicableso, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to by what amount. Any Lender not responding within such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination time period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans have declined to increase its Commitment. The Administrative Agent shall notify the Borrower of the applicable facility or tranche) hereunder, and henceforth shall be entitled Lenders’ responses to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) each request made hereunder. After giving effect The Borrower may also invite additional Eligible Assignees to any become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent.
(c) Upon the completion of each Requested Commitment Increase, all Loans and all such other credit exposure shall (i) entries on Schedule 1.1 will be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the revised Commitments and Commitment Percentages of each of the Lenders (including each new Lender) and (ii) the outstanding Revolving Credit Loans will be reallocated on the effective date of such increase among the Lenders in the Commitments. The terms of any such accordance with their revised Commitment Increase Percentages (and the extensions of credit made pursuant thereto shall be identical Lenders (including each new Lender) having a Commitment agree to those of the other Commitments make all payments and adjustments necessary to effect such reallocation and the extensions of credit made Borrower shall pay any and all costs required pursuant thereto. Each Commitment Increase shall be deemed for all purposes to Section 2.6(c) in connection with such reallocation as if such reallocation were a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such effortsrepayment).
Appears in 1 contract
Sources: Credit Agreement (Rare Hospitality International Inc)
Increase in Commitment. (a) The Company Provided there exists no Default, the Borrower on behalf of the Borrower and Guarantors may, at its option on any time after the 2019 Restatement Effective Date and before the Termination Date, seek to (i) increase the Commitments (any such increase, a “Commitment Increase”) or (ii) establish one or more new term loan commitments (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice to the Administrative Agent; provided that, subject to the calculation adjustments set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, the aggregate principal amount of all Incremental Commitments shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days Day after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agenthereof, subject to without the consent of any Bank but with the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each written consent of the Administrative Agent, each Issuing Lender, Letter of Credit Issuer and the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which consents shall not be less than $25,000,000 orunreasonably withheld or delayed), if less, increase the maximum aggregate amount of Incremental the Revolving Credit Commitments remaining to be established hereunder) sought and/or outstanding Term Loans by the Company, (ii) the Increased delivering a Commitment Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable Increase Request to the Administrative Agent and no Lender shall be required Co-Administrative Agents at least five (5) Business Days (or such shorter period of time agreed by the Administrative Agent) prior to participate in any Incremental the desired effective date of such increase (the “Commitment Amount Increase”) identifying an additional Bank(s) (or additional Revolving Credit Commitments and/or Term Loans for existing Bank(s)) and the amount of its Revolving Credit Commitment and/or Term Loans (or additional amount of its Revolving Credit Commitment(s) and/or Term Loans. On or after such Increased Amount Date); provided, the Companyhowever, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement that (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (Ci) any amortization applicable to Commitment Amount Increase that results in the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those sum of the Incremental Term Loans existing at aggregate Revolving Credit Commitments plus the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the aggregate original principal amount of the Commitments or the Incremental Term Loans to be in excess of any tranche maturing prior to such date$2,000,000,000 will require the approval of the Required Banks, (Bii) have scheduled amortization of more than 5% of any Commitment Amount Increase for the original principal first sixty (60) days after the Effective Date shall be in such minimum amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales as the Borrower and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment.
agree and thereafter in an amount not less than $50,000,000, (d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (iiii) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will have occurred and be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) continuing at the time of the consummation request or the effective date of the Commitment Amount Increase or will result therefrom, (iv) all representations and warranties contained in Article 4 hereof shall be true and correct in all material respects at the time of such Limited Condition Transaction); (ii) all other fees request and expenses owing in respect on the effective date of such increase Commitment Amount Increase (other than representations and warranties that relate to a specific date, which shall be true and correct in all material respects as of such date), and (v) prior to approaching an additional Bank, the Borrower shall have offered to the Administrative Agent existing Banks the opportunity to increase their respective Revolving Credit Commitments and/or outstanding Term Loans, as applicable. The effective date of any Commitment Amount Increase shall be agreed upon by the Borrower and the Lenders will Administrative Agent. The Borrower, Administrative Agent, and each Bank and/or new Bank advancing an additional Term Loan shall agree in the relevant Commitment Amount Increase Request as to the amortization schedule of such additional Term Loan; provided that such additional Term Loans shall have been paid; (iii) a weighted average life to maturity no lower than the Company shall be in pro forma compliance with each remaining weighted average life to maturity of the covenants set forth in Section 11.12 outstanding Term Loans; provided further that no such schedule shall have the effect of reducing the amortization payments scheduled to be made to the Banks that are not increasing their Term Loans. Upon the effectiveness thereof, the new Bank(s) (giving effector, if applicable, to the provisos theretoexisting Bank(s)) as of the last day of the most recently ended Fiscal Quarter (or, i) shall advance Loans in the case an amount sufficient such that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term its Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning each Bank shall have outstanding its respective Percentage of all Loans of the relevant determination period but prior Credit and (ii) in the case of the Revolving Credit, shall acquire its Revolver Percentage of all participations in Letter of Credit Outstandings and Swing Loans. It shall be a condition to such effectiveness that (i) no Euro-Dollar Loans or simultaneous with Euro-Canadian Dollar Loans be outstanding on the borrowing date of such Incremental Commitments or Incremental Term Loans, as the case may be, effectiveness and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of (ii) if such Commitment Amount Increase is to the Revolving Credit Commitments, the Borrower shall be given pro forma effect; and (iv) not have terminated any portion of the Company shall deliver or cause Revolving Credit Commitments pursuant to be delivered Section 2.8 hereof. The Borrower agrees to pay any legal opinions or other documents reasonably requested by reasonable out-of-pocket expenses of the Administrative Agent in connection with relating to any such transaction.
(e) Upon the making of any Incremental Term Loan or Commitment Amount Increase. Promptly upon the effectiveness of any Incremental Commitment of Amount Increase, the Borrower, if requested by any Incremental Lender that is not already a Lender pursuant new Bank, shall execute and deliver new Notes to this Sectioneach requesting Bank. Notwithstanding anything herein to the contrary, such Incremental Lender no Bank shall have any obligation to increase its Revolving Credit Commitment or advance additional Term Loans and no Bank’s Revolving Credit Commitment shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunderincreased without its consent thereto, and henceforth shall be entitled to all the rights ofeach Bank may at its option, unconditionally and benefits accruing towithout cause, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in its Revolving Credit Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such effortsadvance additional Term Loans.
Appears in 1 contract
Increase in Commitment. (a) The Company At any time prior to May 1, 2015, Borrower may, at its option any time after and subject to the 2019 Restatement Effective Date and before conditions set forth below in this §2.8, request up to three (3) times that Agent increase the Termination Date, seek to aggregate Commitments by (i) increase the Commitments admitting additional Lenders hereunder (any such increase, each a “Commitment IncreaseSubsequent Lender”) or and/or (ii) establish one or more new term loan commitments increasing the Commitment of any Lender (each an “Term Loan Commitments” and, together with any Commitment Increase, the “Incremental CommitmentsIncreasing Lender”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice to the Administrative Agent; provided that, subject to the calculation adjustments set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, following conditions:
(a) each Subsequent Lender shall meet the aggregate principal amount of all Incremental Commitments shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.conditions for an Eligible Assignee;
(b) Any such notice delivered if requested by the applicable Lender, Borrower executes new Notes payable to the Administrative Agent in connection with order of each Subsequent Lender, or a Commitment Increase shall be delivered at a time when no Unmatured Event of Default new or Event of Default has occurred and is continuing and shall specify (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered replacement Note payable to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity order of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative Agent, each Issuing Increasing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.;
(c) Any such notice delivered each Subsequent Lender executes and delivers to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments signature page to this Agreement evidencing its agreement to be bound as a Lender hereunder and each Increasing Lender executes and delivers to Agent an acknowledgement of its increased Commitment;
(d) Borrower and Agent shall be appropriate to give effect to have executed new Security Documents and/or modifications of the foregoing terms and to provide the rights and benefits of this Agreement Security Documents and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the increase in the Commitments. The terms Commitments and Borrower shall have paid to Agent any and all documentary stamp tax, non-recurring intangible tax or other taxes imposed in connection with the recording of such modifications of the Security Documents or increase in the Commitment amount and Agent shall be provided with evidence satisfactory to it that all Liens in favor of Agent are and remain first priority Liens;
(e) after giving effect to the admission of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect Subsequent Lender or decline to arrange the increase in the Commitment sought of any Increasing Lender, the sum of all Commitments does not exceed $200,000,000;
(f) each increase in the total Commitments shall be in the amount of at least $10,000,000;
(g) all of the representations and warranties of Borrower and Guarantors in the Loan Documents shall be true and correct in all material respects as of the effective date of the increase in the total Commitment (or if such representations and warranties by their terms relate solely to an earlier date, then as of such earlier date);
(h) no Default or Event of Default exists or would result therefrom;
(i) no Lender, including, but not limited to KeyBank, shall be an Increasing Lender without the Company but is under no obligation written consent of such Lender; 6231593.9\0334186
(j) Borrower shall have delivered to arrange or consummate any such Agent a Compliance Certificate setting forth in reasonable detail computations evidencing compliance, on a proforma basis giving effect to the Commitment increase. The Company will cooperate , with the Administrative covenants contained in §9; and
(k) Borrower shall have executed such other modifications and documents and made such other deliveries as Agent may reasonably require to evidence and effectuate such new or increased Commitments and shall pay or reimburse Agent and Agent’s Special Counsel for all reasonable fees (including any fees specified in the Agreement Regarding Fees), expenses and costs in connection with the foregoing and Borrower shall also pay such effortsLoan fees and placement fees, if any, as may be agreed for such increase in the Commitments. After adding the Commitment of any Increasing Lender or Subsequent Lender, Agent shall promptly provide each Lender and Borrower with a new Schedule 1.1 to this Agreement (and each Lender acknowledges that its Commitment Percentage under Schedule 1.1 and allocated portion of the Outstanding Loans will change in accordance with its pro rata share of the increased Term Commitments.) Unless and until the total Commitments have been increased in accordance with this §2.8, Borrower shall not be permitted any disbursement beyond the amount of the Commitments in effect immediately prior to such proposed increase.
Appears in 1 contract
Sources: Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Increase in Commitment. (a) The Company may, at its option any time after the 2019 Restatement Effective Date and before the Termination Date, seek to (i) increase At any time during the Commitments (any such increase, a “Commitment Increase”) or (ii) establish one or more new term loan commitments (“Term Loan Commitments” and, together with any Commitment IncreaseIncrease Period, the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon Borrower may request by written notice to the Administrative Agent; provided thatAgent (A) an increase to the Revolving Amount, (B) to add an additional term loan facility to this Agreement (the “Additional Term Loan Facility”) (which Additional Term Loan Facility shall be subject to the calculation adjustments set forth in Section 1.3 with respect subsection (c) below) or (C) to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, increase the aggregate principal amount of the Term Loan made on the Closing Date (a “Term Loan Increase”); provided that the aggregate amount of all Incremental Commitments increases and additions (revolver and term) made pursuant to this subsection (b) shall not exceed $50,000,000 and provided, further, that no such increase or addition shall be permitted if (I) the greater Leverage Ratio would, after giving effect to the making of any loans to be made on the date of effectiveness thereof (in each case assuming the Revolving Amount is fully drawn on such effective date) and other appropriate pro forma adjustments in accordance with this Agreement, exceed the lesser of (x) $500,000,000 3.90:1.00 and (y) the maximum Leverage Ratio then permitted under Section 5.7(a) or (II) the covenant contained in Section 5.7(c) would not be satisfied on a pro forma basis for the most recent determination period, after giving effect to the making of any loans to be made on the date of effectiveness thereof (in each case assuming the Revolving Amount is fully drawn on such effective date) and other appropriate pro forma adjustments in accordance with this Agreement. Each such request for an increase or addition shall be in an amount of at least $10,000,000, increased by increments of $1,000,000, and may be made by either (1) increasing, for one or more Revolving Lenders, with their prior written consent, their respective Revolving Credit Commitments, (2) adding a new commitment for one or more then existing Lenders, with their prior written consent, with respect to any Term Loan Increase or Additional Term Loan Facility, or (3) including one or more Additional Lenders, each with a new commitment under the Revolving Credit Commitment or with respect to a Term Loan Increase or an Additional Term Loan Facility, as a party to this Agreement (each an “Additional Commitment” and, collectively, the “Additional Commitments”), as described below. Upon receipt of written notice from the Borrower requesting any such increase or addition, the Administrative Agent shall promptly notify the applicable Lenders of such request. At the time of sending such notice to the applicable Lenders, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each applicable Lender is requested to respond (which shall in no event be less than five Business Days from the date of delivery of such notice). Each applicable Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Revolving Amount, or provide a portion of the relevant Additional Term Loan Facility or Term Loan Increase, and, if so, the amount thereof. Any applicable Lender so approached to provide all or a portion of an increase to the Revolving Amount or provide a portion of the relevant Additional Term Loan Facility or Term Loan Increase, may elect or decline the same, in its sole discretion. Any applicable Lender not responding within such time period shall be deemed to have declined the same. The Administrative Agent shall notify the Borrower of the applicable Lenders’ responses to each request made under this Section. To achieve the full amount of a requested increase or addition, the Borrower may if necessary after receipt of responses from the applicable Lenders also invite one or more Additional Lenders to become Lenders pursuant to a joinder agreement to this Agreement in form and substance satisfactory to the Administrative Agent.
(ii) During the Commitment Increase Period, all of the Lenders agree that the Administrative Agent, in its reasonable discretion, may permit one or more Additional Commitments upon satisfaction of the following requirements: (A) each Additional Lender, if any, shall execute an Additional Lender Assumption Agreement, (B) each Additional Commitment from an Additional Lender, if any, shall be in an amount of at least $1,000,000, (C) the Administrative Agent shall provide to the Borrower and each Lender a revised Schedule 1 to this Agreement, including revised Applicable Commitment Percentages for each of the Lenders, if appropriate, on or prior to the date of the effectiveness of such Additional Commitments (each an “Additional Lender Assumption Effective Date”), and (D) the Borrower shall execute and deliver to the Administrative Agent and the applicable Lenders such replacement or additional Notes as shall be required by the Administrative Agent (and requested by such Lender or Lenders). The Lenders hereby authorize the Administrative Agent to execute each Additional Lender Assumption Agreement on behalf of the Lenders.
(iii) On each Additional Lender Assumption Effective Date (except in the case of an Additional Term Loan Facility), as appropriate, the relevant Lenders shall make adjustments among themselves with respect to the Loans then outstanding and amounts of principal, interest, commitment fees and other amounts paid or payable with respect thereto as shall be necessary, in the opinion of the Administrative Agent, in order to reallocate among the applicable Lenders such outstanding amounts, based on the revised Applicable Commitment Percentages and to otherwise carry out fully the intent and terms of this Section 2.10(b) (and the Borrower shall pay to the applicable Lenders any amounts that would be payable pursuant to Section 3.3 hereof if such adjustments among the applicable Lenders would cause a prepayment of one or more Eurodollar Loans). In connection therewith, it is understood and agreed that the Maximum Amount of any Lender will not be increased (or decreased except pursuant to subsection (a) hereof) without the prior written consent of such Lender. The Borrower shall not request any increase or addition pursuant to subsection (b)(i) if a Default or an Event of Default shall then exist, or, after giving pro forma effect to any such increase or addition, would exist. The terms applicable to the incurrence Revolving Loans (and Revolving Credit Commitments) in respect of an increase to the Revolving Amount and the terms applicable to the portion of the Term Loan in respect of a Term Loan Increase, in each case pursuant to this Section 2.10, shall be substantially identical to the terms then applicable to existing Revolving Loans (and Revolving Credit Commitments) or to the existing portion of the Term Loan, as the case may be; provided however that the initial issue price of the loans subject to a Term Loan Increase need not be so identical so long as such issue price is not less than the issue price that would produce a Yield Differential as between the Term Loan issued on the Closing Date and the loans to be issued as part of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00Term Loan Increase.
(biv) Any such notice delivered Notwithstanding anything herein to the Administrative Agent in connection with a Commitment Increase shall be delivered contrary, at a the time when no Unmatured Event of Default any such increase or Event of Default has occurred and is continuing and shall specify (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 oraddition contemplated by this Section 2.10(b), if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative Agent, each Issuing Lender, the Swing Line Lender Credit Parties and the Company which have expressed a desire Lenders providing such increase or addition shall enter into an amendment to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender evidence such increase or addition and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders amendment may, and without the consent of any other LenderLenders, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of effect such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on as may be necessary or appropriate in the terms set forth therein without reasonable opinion of the consent Administrative Agent to effect the provisions of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be 2.10(b) (including, without limitation, amendments to the same as those definitions in this Agreement to designate “classes” or “tranches” of loans, borrowings and commitments, and related terms, and to Section 9.8 hereof for the Incremental Term Loans existing at purpose of treating such increases pari passu with the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rightsloans established hereunder), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iiihereby consent to the transactions contemplated by this Section 2.10(b) and hereby waive the Company requirements of any provision of this Agreement or any other Loan Document that may otherwise prohibit the transactions contemplated by this Section 2.10(b). Upon each increase of the Revolving Amount, Term Loan Increase or addition of the Additional Term Loan Facility, the Total Commitment Amount shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, increased by an amount equal to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing amount of such Incremental Commitments increase or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transactionaddition.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such efforts.
Appears in 1 contract
Sources: Credit and Security Agreement (Ignite Restaurant Group, Inc.)
Increase in Commitment. (a) The Company mayProvided that no Unmatured Default or Default has occurred and is continuing, subject to the terms and conditions set forth in this Section 2.23, the Borrower shall have the option at its option any time and from time to time after the 2019 Restatement Agreement Effective Date and before prior to the date that is at least thirty (30) days prior to the Facility Termination DateDate to request an increase in the Aggregate Revolving Credit Commitment, seek to (i) increase the Commitments (any such increase, a “Commitment Increase”) or (ii) establish one or more new term loan commitments (“Term Loan A Commitments and/or the Term Loan B Commitments” and, together with any Commitment Increaseeach in increments of $10,000,000, by an aggregate amount of increases to the Aggregate Revolving Credit Commitment, the “Incremental Term Loan A Commitments and Term Loan B Commitments of up to $340,000,000 (the amount of the requested increase to be set forth in the Increase Notice) (which, assuming no previous reduction in the Revolving Credit Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon Loan A Commitments or the Term Loan B Commitments, would result in an Aggregate Commitment of $1,200,000,000), written notice to the Administrative Agent; provided that, subject to Agent (an “Increase Notice”). The execution and delivery of the calculation adjustments Increase Notice by the Borrower shall constitute a representation and warranty by the Borrower that all the conditions set forth in this Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, 2.23 shall have been satisfied on the aggregate principal amount date of all Incremental Commitments shall not exceed the greater of such Increase Notice. The Commitment Increase may be allocated (x1) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of then existing Revolving Credit Commitments, having the same terms as the existing Revolving Credit Commitments, (2) to the then existing Term Loan A Commitments having the same terms as the existing Term Loan A Commitments, (3) to the initial Term Loan B Commitment, or once the initial Term Loan B Commitment is provided hereunder, to the then existing Term Loan B Commitments having the same terms as the existing Term Loan B Commitments, or (4) any combination thereof reasonably satisfactory to Administrative Agent and satisfactory to the existing or additional Revolving Credit Lenders, Term Loan A Lenders or Term Loan B Lenders, as applicable, providing such Incremental additional Revolving Credit Commitments, Term Loan A Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00or Term Loan B Commitments, as applicable.
(b) Any such notice delivered to In the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event event of Default or Event the initial increase of Default has occurred and is continuing and shall specify the Term Loan B Commitment, (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the CompanyBorrower, the Administrative Agent and one or more Incremental the Lenders mayproviding such initial Term Loan B Commitment shall enter into an amendment to this Agreement as is necessary to evidence such increase of the Term Loan B Commitment (the “Term Loan B Commitment Amendment”), and without all Lenders not providing the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental initial Term Loan Amendment”) setting forthB Commitments hereby consent to such limited scope amendment without future consent rights, to provided that any such amendment regarding the extent applicable, the following terms of such Incremental Term LoansLoan B Commitments shall provide that: (A) whether such Incremental the final maturity date of the Term Loans will Loan B Commitment shall be part of an existing tranche of Incremental no earlier than the Term Loans or part of a new and separate trancheLoan A Maturity Date, (B) there shall be no scheduled amortization of the maturity loans or termination date applicable to reductions of commitments under the Incremental Term Loans or Term Loan Commitments of such tranche, B Commitment (which shall not restrict any mandatory prepayments required under Section 2.3(b)) and (C) any amortization applicable the Term Loan B Loans will rank pari passu in right of payment with the existing Revolving Credit Loans and the existing Term Loan A Loans and the borrower and guarantors of the Term Loan B Commitment shall be the same as the Borrower and Subsidiary Guarantors with respect to the Incremental existing Revolving Credit Loans and Term Loans of such trancheLoan A Loans, (D) the interest rate or rates margin, rate floors, fees, original issue discount and premium applicable to the Incremental Term Loan B Loans of such trancheshall be determined by the Borrower and the Term Loan B Lenders, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such trancheB Loans may participate on a pro rata or less than pro rata (but not greater than pro rata) basis in voluntary or mandatory prepayments with the Revolving Credit Loans and the Term Loan A Loans, and (F) any original issue discount applicable to Incremental Term Loans or the terms of the Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan B Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate substantially identical to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without herein with respect to the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, Loan A Commitment (1) except as provided set forth in clauses (A) through (HE) above), no Incremental except for any terms that apply only after the Term Loan Amendment A Maturity Date or are also added for the benefit of the Term Loan A Lenders, and (ii) Borrower shall alter the rights execute and deliver a Note to each Term Loan B Lender with respect to its respective Term Loan B Loan.
(c) Upon receipt of any Lender (other than Increase Notice, the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without Administrative Agent shall consult with the consent of such Lender unless such consent Arrangers and shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than notify the Latest Maturity Date without the prior written consent of Lenders holding a majority Borrower of the principal amount of facility fees (if any) to be paid to any Lenders who provide an additional Revolving Credit Commitment, Term Loan A Commitment or Term Loan B Commitment, as applicable, in connection with such increase in the Aggregate Revolving Credit Commitment, Term Loan A Commitment or Term Loan B Commitment, as applicable (which shall be in addition to the fees to be paid to Administrative Agent or the Arrangers pursuant to the Fee Letter). If the Borrower agrees to pay the facility fees so determined, then the Administrative Agent shall send a notice to all Revolving Credit Lenders, Term Loan A Lenders or Term Loan B Lenders, as applicable, (the “Additional Commitment Request Notice”) informing them of the Borrower’s request to increase the Aggregate Revolving Credit Commitment, Term Loan A Commitment and/or Term Loan B Commitment, as applicable, and of the facility fees to be paid with respect thereto. Each Lender who desires to provide an additional Revolving Credit Commitment, Term Loan A Commitment and/or Term Loan B Commitment, as applicable, upon such terms shall provide Administrative Agent with a written commitment letter specifying the amount of the Commitments or the Incremental additional Revolving Credit Commitment, Term Loans of any tranche maturing Loan A Commitment and/or Term Loan B Commitment, as applicable, which it is willing to provide prior to such datedeadline as may be specified in the Additional Commitment Request Notice. If the requested increase is oversubscribed then the Administrative Agent and the Arrangers shall allocate the Commitment Increase among the Revolving Credit Lenders, (B) have scheduled amortization of more than 5% Term Loan A Lenders and/or Term Loan B Lenders, as applicable, who provide such commitment letters on such basis as the Administrative Agent and the Arrangers shall determine after consultation with the Borrower. If the additional Revolving Credit Commitments, Term Loan A Commitments and/or Term Loan B Commitments, as applicable, so provided are not sufficient to provide the full amount of the original principal amount of such Incremental Commitment Increase requested by the Borrower, then the Administrative Agent, the Arrangers or the Borrower may, but shall not be obligated to, invite one or more banks or lending institutions (which banks or lending institutions shall be acceptable to Administrative Agent, the Arrangers and the Borrower) to become a Revolving Credit Lender, Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales A Lender and/or Term Loan B Lender and casualty events (with customary reinvestment rights)provide an additional Revolving Credit Commitment, the incurrence of Debt not otherwise permitted hereunder and annual excess cash flowTerm Loan A Commitment and/or Term Loan B Commitment, as applicable. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental provide all Revolving Credit Lenders, Term Loan AmendmentA Lenders and/or Term Loan B Lenders, as applicable, with a notice setting forth the amount, if any, of the additional Revolving Credit Commitment, Term Loan A Commitment and/or Term Loan B Commitment, to be provided by each Revolving Credit Lender, Term Loan A Lender and/or Term Loan B Lender, as applicable, and the revised Revolving Credit Percentages, Term Loan A Commitment Percentages and/or Term Loan B Commitment Percentages, as applicable, which shall be applicable after the effective date of the Commitment Increase specified therein (the “Commitment Increase Date”). In no event shall any Lender be obligated hereunder to provide an additional Revolving Credit Commitment, Term Loan A Commitment and/or Term Loan B Commitment.
(d) Notwithstanding On any Commitment Increase Date with respect to the foregoingRevolving Credit Commitment, no Incremental Commitments or Incremental Term the outstanding principal balance of the Revolving Credit Loans shall be made or established, and no Incremental Term Loan Amendment reallocated among the Revolving Credit Lenders such that after the applicable Commitment Increase Date the outstanding principal amount of Revolving Credit Loans owed to each Lender shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect be equal to such Incremental Commitments or Incremental Term Loans ▇▇▇▇▇▇’s Revolving Credit Percentage (except as in effect after the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(aapplicable Commitment Increase Date) or 13.1(c) at the time of the consummation outstanding principal amount of such Limited Condition Transaction); (ii) all other fees Revolving Credit Loans. The participation interests of the Revolving Credit Lenders in Letters of Credit and expenses owing in respect of such increase Swingline Advances shall be similarly adjusted. On any Commitment Increase Date those Revolving Credit Lenders whose Revolving Credit Percentage is increasing shall advance the funds to the Administrative Agent and the Lenders will have been paid; (iii) the Company funds so advanced shall be in pro forma compliance with each distributed among the Revolving Credit Lenders whose Revolving Credit Percentage is decreasing as necessary to accomplish the required reallocation of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term outstanding Revolving Credit Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making effective date of any Incremental each increase in the Aggregate Revolving Credit Commitment, Term Loan A Commitments and/or Term Loan B Commitments pursuant to this Section 2.23, the Administrative Agent may unilaterally revise Schedule 1.1 to reflect the then current Commitments of each Lender and shall provide a copy thereof to each Lender.
(f) Notwithstanding anything to the contrary contained herein, the obligation of the Administrative Agent and the Revolving Credit Lenders to increase the Aggregate Revolving Credit Commitment, the Administrative Agent and the Term Loan A Lenders to increase the Term Loan A Commitments or the Administrative Agent and the Term Loan B Lenders (including any Persons that elect to become Term Loan B Lenders) to increase the Term Loan B Commitments, as applicable, pursuant to this Section 2.23 shall be conditioned upon satisfaction of the following conditions precedent which must be satisfied prior to the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans increase of the applicable facility Aggregate Revolving Credit Commitment, the Term Loan A Commitments or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Term Loan B Commitments, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such efforts.applicable:
Appears in 1 contract
Sources: Credit Agreement (Inland Real Estate Income Trust, Inc.)
Increase in Commitment. (a) The Company Borrower may, at its option on any time after the 2019 Restatement Effective Date and before Business Day prior to the Termination Date, seek to (i) with the written consent of the Administrative Agent, increase the Commitments aggregate amount of the Commitment by delivering an Increase Request substantially in the form attached hereto as Exhibit G (any or in such increase, a “Commitment Increase”) or (ii) establish one or more new term loan commitments (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice other form acceptable to the Administrative Agent; provided that, subject ) to the calculation adjustments set forth in Section 1.3 with respect Administrative Agent at least five (5) Business Days prior to any Incremental Term Loans being incurred in connection with a Limited Condition Transactionthe desired effective date of such increase (the “Revolver Increase”) identifying an additional Lender (or additional Commitment for an existing Lender) and the additional amount of its Commitment (or additional amount of its Commitment; provided, however, that:
(a) the aggregate principal amount of all Incremental Commitments such Revolver Increases shall not exceed $20,000,000 and any such Revolver Increase shall be in an amount not less than $2,000,000 (or such lesser amount then agreed to by the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.Administrative Agent);
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has shall have occurred and is be continuing at the time of the request or the effective date of the Revolver Increase; and
(c) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall specify be and remain true and correct in all material respects (iwhere not already qualified by materiality, otherwise in all respects) on the amount effective date of such Commitment Revolver Increase, except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date. The effective date of the Revolver Increase shall be agreed upon by the Borrower and the Administrative Agent. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect the Revolver Increase and the new Lender (which shall not be less than $10,000,000 or, if lessapplicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Revolver Percentage of all Revolving Loans outstanding under the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which Commitments. It shall be a date not less than ten Business Days after condition to such effectiveness that (A) if any Eurodollar Loans are outstanding on the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase effectiveness, such Eurodollar Loans shall be allocated deemed to be prepaid on such date and the Borrower shall pay any amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory owing to the Administrative Agent pursuant to which Section 4.5 and (B) the Borrower shall not have terminated any such Incremental Lender states portion of the amount of its Commitment Increase and pursuant to Section 2.11. ▇▇▇▇▇▇▇▇ agrees to assume pay the reasonable and accept the obligations and rights documented out-of-pocket expenses of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretionincluding reasonable attorney’s fees of outside counsel) and (iii) the identity of each Incremental Lenderrelating to any Revolver Increase. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable Notwithstanding anything herein to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Datecontrary, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as not have any obligation to the effectiveness of each Incremental Term Loan Amendment.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or establishedincrease its Commitment, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or at its option, unconditionally and without cause, decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such effortsits Commitment.
Appears in 1 contract
Sources: Credit Agreement (Shimmick Corp)
Increase in Commitment. (a) The Company may, at its option any time after the 2019 Restatement Effective Date and before the Termination Date, seek to (i) At any time during the Commitment Increase Period, the Borrowers may request that the Administrative Agent increase the Commitments Total Commitment Amount by (any such increaseA) increasing the Maximum Revolving Amount, a or (B) adding one or more additional term loan facilities to this Agreement (each an “Commitment IncreaseAdditional Term Loan Facility”) (which Additional Term Loan Facility shall be subject to subsection (c) below); provided that the aggregate amount of all increases made pursuant to this subsection (b) shall not exceed Thirty Million Dollars ($30,000,000). Each such request for an increase shall be in an amount of at least Five Million Dollars ($5,000,000), increased by increments of One Million Dollars ($1,000,000), and may be made by either (1) increasing, for one or more Lenders, with their prior written consent, their respective Revolving Credit Commitments, (2) adding a new commitment for one or more Lenders, with their prior written consent, with respect to the Additional Term Loan Facility, or (3) including one or more Additional Lenders, each with a new commitment under the Revolving Credit Commitment or the Additional Term Loan Facility, as a party to this Agreement (each an “Additional Commitment” and, collectively, the “Additional Commitments”).
(ii) establish one or more new term loan commitments (“Term Loan Commitments” andDuring the Commitment Increase Period, together with any Commitment Increase, all of the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice to Lenders agree that the Administrative Agent; provided that, subject to the calculation adjustments set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, the aggregate principal amount of all Incremental Commitments shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to permit one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each Additional Commitments upon satisfaction of the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loansrequirements: (A) whether such Incremental Term Loans will be part of each Additional Lender, if any, shall execute an existing tranche of Incremental Term Loans or part of a new and separate trancheAdditional Lender Assumption Agreement, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments each Additional Commitment from an Additional Lender, if any, shall be in an amount of such trancheFive Million Dollars ($5,000,000), (C) any amortization applicable the Administrative Agent shall provide to the Incremental Term Loans Borrowers and each Lender a revised Schedule 1 to this Agreement, including revised Applicable Commitment Percentages for each of the Lenders, if appropriate, at least three Business Days prior to the date of the effectiveness of such trancheAdditional Commitments (each an “Additional Lender Assumption Effective Date”), and (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche Borrowers shall execute and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase deliver to the Administrative Agent and the Lenders will have been paid; (iii) the Company such replacement or additional Notes as shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested required by the Administrative Agent in connection with any (if Notes have been requested by such transactionLender or Lenders). The Lenders hereby authorize the Administrative Agent to execute each Additional Lender Assumption Agreement on behalf of the Lenders.
(eiii) Upon On each Additional Lender Assumption Effective Date with respect to the making Specific Commitment being increased, as appropriate, the Lenders shall make adjustments among themselves with respect to the Loans then outstanding and amounts of principal, interest, commitment fees and other amounts paid or payable with respect thereto as shall be necessary, in the opinion of the Administrative Agent, in order to reallocate among such Lenders such outstanding amounts, based on the revised Applicable Commitment Percentages and to otherwise carry out fully the intent and terms of this Section 2.10(b) (and the Borrowers shall pay to the Lenders any amounts that would be payable pursuant to Section 3.3 hereof if such adjustments among the Lenders would cause a prepayment of one or more Term SOFR Loans). In connection therewith, it is understood and agreed that the Maximum Amount of any Incremental Term Loan Lender will not be increased (or decreased except pursuant to subsection (a) above) without the effectiveness prior written consent of such Lender. The Borrowers shall not request any Incremental increase in the Total Commitment of any Incremental Lender that is not already a Lender Amount pursuant to this Sectionsubsection (b) if a Default or an Event of Default shall then exist, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunderor, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After after giving pro forma effect to any Commitment Increasesuch increase, all Loans and all such other credit exposure shall be held ratably by would exist. At the Lenders in proportion to their respective Commitments, as revised to reflect the increase in the Commitments. The terms time of any such Commitment Increase increase, at the request of the Administrative Agent, the Credit Parties and the extensions Lenders shall enter into an amendment to evidence such increase and to address related provisions as deemed necessary or appropriate by the Administrative Agent. Upon each increase of credit made pursuant thereto the Maximum Revolving Amount or addition of the Additional Term Loan Facility, the Total Commitment Amount shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought increased by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such effortssame amount.
Appears in 1 contract
Sources: Credit and Security Agreement (Universal Logistics Holdings, Inc.)
Increase in Commitment. (a) The Company may, at its option any time after the 2019 Restatement Effective Date and before the Termination Date, seek to So long as (ia) increase the Commitments (any such increase, a “Commitment Increase”) or (ii) establish one or more new term loan commitments (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice to the Administrative Agent; provided that, subject to the calculation adjustments set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, the aggregate principal amount of all Incremental Commitments shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing continuing, and (b) the Borrower has not terminated or reduced in part any unused portion of the Commitments at any time pursuant to Section 2.5, the Borrower may, at any time and from time to time, by notice to the Agent, request an increase in the aggregate amount of the Commitments within the limitations hereafter described, which notice shall specify set forth the amount of such increase. In accordance with Section 2.6(d), the aggregate amount of the Commitments may be so increased either by having one or more New Lenders that have been approved by the Borrower become Lenders and/or by having any one or more of the then existing Lenders (at their respective election in their sole discretion) increase the amount of their Commitment (Increasing Lenders), provided that (i) the amount Commitment of such Commitment Increase (which any New Lender shall not be less than $10,000,000 orand the sum of the Commitments of the New Lenders and the increases in the Commitments of the Increasing Lenders shall be in an aggregate amount of not less than $10,000,000 (and, if lessin excess thereof, the maximum amount in integral multiples of Incremental Commitments remaining to be established hereunder) sought by the Company, $5,000,000); (ii) the date aggregate amount of all the increases in the Commitments pursuant to this Section 2.6 shall not exceed Fifty Million Dollars (each$50,000,000); (ii) the Borrower, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase each New Lender and/or each Increasing Lender shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is have executed and delivered to the Administrative Agent a commitment and acceptance (unless otherwise agreed by the Administrative Commitment and Acceptance) substantially in the form of Exhibit F hereto, and the Agent in its sole discretion) shall have accepted and executed the same, (iiiiv) the identity Borrower shall have executed and delivered to the Agent a Revolving Note or Revolving Notes payable to the order of each Incremental New Lender and/or each Increasing Lender, each such Revolving Note to whom be in the Company proposes any portion amount of such New Lender's Commitment Increase be allocated and or such Increasing Lenders Commitment (as applicable); (v) the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company Borrower shall have delivered to the Administrative Agent a document in form reasonably satisfactory opinions of counsel (substantially similar to the Administrative forms of opinions provided for in Section 6.1(j), modified to apply to the increase in the Commitments and each new Revolving Note and Commitment and Acceptance executed and delivered in connection therewith); (vi) the Significant Subsidiaries shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed that their Guarantees continue in full force and effect, and (vii) the Borrower, each New Lender and/or each Increasing Lender shall otherwise have executed and delivered such other instruments and documents as the Agent shall have reasonably requested in connection with such new Commitment or increase in the Commitment (as applicable). The form and substance of the documents required under clauses (iii) through (vii) above shall be reasonably acceptable to the Agent. The Agent shall provide written notice to all of the Lenders hereunder of the admission of any New Lender or the increase in the Commitment of any Increasing Lender hereunder and shall furnish to each of the Lenders copies of the documents required under clause (iii), (v), (vi) and (vii) above.
(b) Upon the effective date of any increase in the aggregate amount of Commitments pursuant to the provisions hereof (Increase Date), which any Increase Date shall be mutually agreed upon by the Borrower, each New Lender, each Increasing Lender and the Agent, each New Lender and/or Increasing Lender shall make a payment to the Agent in an amount sufficient, upon the application of such Incremental payments by all New Lenders and Increasing Lenders to the reduction of the outstanding Revolving Loans held by the Lenders (including the Increasing Lenders) to cause the principal amount outstanding under the Revolving Loans made by each Lender states to be equal to each Lenders Commitment Percentage of the aggregate amount of its Commitment Increase Commitments as so increased. The Borrower hereby irrevocably authorizes each New Lender and/or each Increasing Lender to fund to the Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the outstanding Revolving Loans held by the other Lenders, and agrees to assume and accept each such payment shall constitute a Revolving Loan hereunder. If, as a result of the obligations and rights repayment of the Revolving Loans provided for in this Section 2.6(b), any payment of a Eurodollar Loan occurs on a day which is not the last day of the applicable Interest Period, the Borrower will pay to the Agent for the benefit of any of the Lenders (including any Increasing Lender hereunderto the extent of Eurodollar Loans held by such Increasing Bank prior to such Increase Date) holding a Eurodollar Loan any loss or cost incurred by such Lender resulting therefrom in accordance with Section 5.5. Upon the Increase Date, and all Revolving Loans outstanding hereunder (including any Revolving Loans made by the Company accepts New Lenders and/or Increasing Lenders on the Increase Date) shall be Base Rate Loans, subject to the Borrower's right to convert the same to Eurodollar Loans on or after such new Commitmentsdate in accordance with the provisions of Section 3.5.
(c) Any such notice delivered Upon the Increase Date and the making of the Revolving Loans by the New Lenders and/or Increasing Lenders in accordance with the provisions of Section 2.6(b), each New Lender and/or each Increasing Lender shall also be deemed to have irrevocably and unconditionally purchased and received without recourse or warranty, from the Lenders immediately prior to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Increase Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) an undivided interest and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate participation in any Incremental Term Loans. On or after such Increased Amount DateLetter of Credit and Swingline Loan, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent as applicable, the following terms of then outstanding, ratably, such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any each Lender (other than the Incremental Lendersincluding each New Lender) holds a participation interest in a manner that would not be permitted under Section 15.1 without the consent each such Letter of such Lender unless such consent shall have been obtained Credit and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior Swingline Loan, as applicable, in proportion to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan AmendmentLenders Commitment Percentage.
(d) Notwithstanding Upon the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in notice by the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase Borrower to the Administrative Agent and the Lenders will have been paid; (iiipursuant to Section 2.6(a) the Company shall be in pro forma compliance with hereof, each of the covenants set forth then existing Lenders shall have the right (at its election) to increase its Commitment by an amount equal to such Lenders Commitment Percentage of the proposed increase in Section 11.12 (giving effectthe aggregate Commitments. If less than all of the proposed increase in aggregate Commitments is elected by the existing Lenders, if applicablethen any of the then existing Lenders shall have the right to increase its Commitment in an amount greater than such Lenders Commitment Percentage of the proposed increase in the aggregate Commitments with the Agents approval. If the entire amount of the proposed increase in aggregate Commitments is still not obtained, Agent shall use its best efforts with Borrowers full cooperation to add New Lenders, acceptable to the provisos thereto) as Borrower and to the Agent, with new Commitments which when added to the increase in Commitments of the last day Increasing Lenders, shall equal the requested increase in the aggregate amount of the most recently ended Fiscal Quarter (or, Commitments. In the event the sum of each New Lenders Commitment and the increase in each Increasing Lenders Commitment is less than the requested increase in the case that aggregate amount of Commitments, the proceeds of any Incremental Term Loan are being used Borrower may elect to finance a Limited Condition Transaction, as accept the increase in the aggregate amount of the last day of the most recently ended Fiscal Quarter prior Commitments to be equal to such lesser amount. Notwithstanding anything to the applicable LCT Test Date) after giving effect contrary, Agent shall not be liable for any failure to such Commitment Increase obtain Increasing Lenders or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including New Lenders hereunder or any Acquisitions or dispositions after failure to increase the beginning aggregate amount of Commitments by the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably amount so requested by the Administrative Agent in connection with any such transactionBorrower pursuant to Section 2.6(a).
(e) Upon the making of any Incremental Term Loan Nothing contained herein shall constitute, or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall otherwise be deemed to be a “Lender” commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time. No Lender (and a Lender in respect of Loans of except only for itself) shall have the applicable facility or trancheright to decline Borrower=s request pursuant to Section 2.6(a) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the for an increase in the aggregate amount of Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such efforts.
Appears in 1 contract
Increase in Commitment. (a) The Company mayProvided that no Unmatured Default or Default has occurred and is continuing, subject to the terms and conditions set forth in this Section 2.23, the Borrower shall have the option at its option any time after and from time to time prior to the 2019 Restatement Effective date that is at least thirty (30) days prior to the Facility Termination Date and before to request an increase in the Termination DateAggregate Revolving Credit Commitment, seek to (i) increase the Commitments (any such increase, a “Commitment Increase”) or (ii) establish one or more new term loan commitments (“Term Loan A Commitments and/or the Term Loan B Commitments” and, together with any Commitment Increaseeach in increments of $10,000,000, by an aggregate amount of increases to the Aggregate Revolving Credit Commitment, the “Incremental Term Loan A Commitments and Term Loan B Commitments of up to $350,000,000 (the amount of the requested increase to be set forth in the Increase Notice) (which, assuming no previous reduction in the Revolving Credit Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon Loan A Commitments or the Term Loan B Commitments, would result in an Aggregate Commitment of LEGAL02/41239043v9 $825,000,000), written notice to the Administrative Agent; provided that, subject to Agent (an “Increase Notice”). The execution and delivery of the calculation adjustments Increase Notice by the Borrower shall constitute a representation and warranty by the Borrower that all the conditions set forth in this Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, 2.23 shall have been satisfied on the aggregate principal amount date of all Incremental Commitments shall not exceed the greater of such Increase Notice. The Commitment Increase may be allocated (x1) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of then existing Revolving Credit Commitments, having the same terms as the existing Revolving Credit Commitments (2) to the then existing Term Loan A Commitments having the same terms as the existing Term Loan A Commitments, (3) to the initial Term Loan B Commitment, or once the initial Term Loan B Commitment is provided hereunder, to the then existing Term Loan B Commitments having the same terms as the existing Term Loan B Commitments, or (4) any combination thereof reasonably satisfactory to Administrative Agent and satisfactory to the existing or additional Revolving Credit Lenders, Term Loan A Lenders or Term Loan B Lenders, as applicable, providing such Incremental additional Revolving Credit Commitments, Term Loan A Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00or Term Loan B Commitments, as applicable.
(b) Any such notice delivered to In the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event event of Default or Event the initial increase of Default has occurred and is continuing and shall specify the Term Loan B Commitment, (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the CompanyBorrower, the Administrative Agent and one or more Incremental the Lenders mayproviding such initial Term Loan B Commitment shall enter into an amendment to this Agreement as is necessary to evidence such increase of the Term Loan B Commitment (the “Term Loan B Commitment Amendment”), and without all Lenders not providing the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental initial Term Loan Amendment”) setting forthB Commitments hereby consent to such limited scope amendment without future consent rights, to provided that any such amendment regarding the extent applicable, the following terms of such Incremental Term LoansLoan B Commitments shall provide that: (A) whether such Incremental the final maturity date of the Term Loans will Loan B Commitment shall be part of an existing tranche of Incremental no earlier than the Term Loans or part of a new and separate trancheLoan A Maturity Date, (B) there shall be no scheduled amortization of the maturity loans or termination date applicable to reductions of commitments under the Incremental Term Loans or Term Loan Commitments of such tranche, B Commitment (which shall not restrict any mandatory prepayments required under Section 2.3(b)) and (C) any amortization applicable the Term Loan B Loans will rank pari passu in right of payment with the existing Revolving Credit Loans and the existing Term Loan A Loans and the borrower and guarantors of the Term Loan B Commitment shall be the same as the Borrower and Subsidiary Guarantors with respect to the Incremental existing Revolving Credit Loans and Term Loans of such trancheLoan A Loans, (D) the interest rate or rates margin, rate floors, fees, original issue discount and premium applicable to the Incremental Term Loan B Loans of such trancheshall be determined by the Borrower and the Term Loan B Lenders, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such trancheB Loans may participate on a pro rata or less than pro rata (but not greater than pro rata) basis in voluntary or mandatory prepayments with the Revolving Credit Loans and the Term Loan A Loans, and (F) any original issue discount applicable to Incremental Term Loans or the terms of the Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan B Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate substantially identical to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without herein with respect to the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, Loan A Commitment (1) except as provided set forth in clauses (A) through (HE) above), no Incremental except for any terms that apply only after the Term Loan Amendment A Maturity Date or are also added for the benefit of the Term Loan A Lenders, and (ii) Borrower shall alter the rights execute and deliver a Note to each Term Loan B Lender with respect to its respective Term Loan B Loan.
(c) Upon receipt of any Lender (other than Increase Notice, the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without Administrative Agent shall consult with the consent of such Lender unless such consent Arrangers and shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than notify the Latest Maturity Date without the prior written consent of Lenders holding a majority Borrower of the principal amount of facility fees (if LEGAL02/41239043v9 any) to be paid to any Lenders who provide an additional Revolving Credit Commitment, Term Loan A Commitment or Term Loan B Commitment, as applicable, in connection with such increase in the Aggregate Revolving Credit Commitment, Term Loan A Commitment or Term Loan B Commitment, as applicable (which shall be in addition to the fees to be paid to Administrative Agent or the Arrangers pursuant to the Fee Letter). If the Borrower agrees to pay the facility fees so determined, then the Administrative Agent shall send a notice to all Revolving Credit Lenders, Term Loan A Lenders or Term Loan B Lenders, as applicable, (the “Additional Commitment Request Notice”) informing them of the Borrower’s request to increase the Aggregate Revolving Credit Commitment, Term Loan A Commitment and/or Term Loan B Commitment, as applicable, and of the facility fees to be paid with respect thereto. Each Lender who desires to provide an additional Revolving Credit Commitment, Term Loan A Commitment and/or Term Loan B Commitment, as applicable, upon such terms shall provide Administrative Agent with a written commitment letter specifying the amount of the Commitments or the Incremental additional Revolving Credit Commitment, Term Loans of any tranche maturing Loan A Commitment and/or Term Loan B Commitment, as applicable, which it is willing to provide prior to such datedeadline as may be specified in the Additional Commitment Request Notice. If the requested increase is oversubscribed then the Administrative Agent and the Arrangers shall allocate the Commitment Increase among the Revolving Credit Lenders, (B) have scheduled amortization of more than 5% Term Loan A Lenders and/or Term Loan B Lenders, as applicable, who provide such commitment letters on such basis as the Administrative Agent and the Arrangers shall determine after consultation with the Borrower. If the additional Revolving Credit Commitments, Term Loan A Commitments and/or Term Loan B Commitments, as applicable, so provided are not sufficient to provide the full amount of the original principal amount of such Incremental Commitment Increase requested by the Borrower, then the Administrative Agent, the Arrangers or the Borrower may, but shall not be obligated to, invite one or more banks or lending institutions (which banks or lending institutions shall be acceptable to Administrative Agent, the Arrangers and the Borrower) to become a Revolving Credit Lender, Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales A Lender and/or Term Loan B Lender and casualty events (with customary reinvestment rights)provide an additional Revolving Credit Commitment, the incurrence of Debt not otherwise permitted hereunder and annual excess cash flowTerm Loan A Commitment and/or Term Loan B Commitment, as applicable. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental provide all Revolving Credit Lenders, Term Loan AmendmentA Lenders and/or Term Loan B Lenders, as applicable, with a notice setting forth the amount, if any, of the additional Revolving Credit Commitment, Term Loan A Commitment and/or Term Loan B Commitment, to be provided by each Revolving Credit Lender, Term Loan A Lender and/or Term Loan B Lender, as applicable, and the revised Revolving Credit Percentages, Term Loan A Commitment Percentages and/or Term Loan B Commitment Percentages, as applicable, which shall be applicable after the effective date of the Commitment Increase specified therein (the “Commitment Increase Date”). In no event shall any Lender be obligated hereunder to provide an additional Revolving Credit Commitment, Term Loan A Commitment and/or Term Loan B Commitment.
(d) Notwithstanding On any Commitment Increase Date with respect to the foregoingRevolving Credit Commitment, no Incremental Commitments or Incremental Term the outstanding principal balance of the Revolving Credit Loans shall be made or established, and no Incremental Term Loan Amendment reallocated among the Revolving Credit Lenders such that after the applicable LEGAL02/41239043v9 Commitment Increase Date the outstanding principal amount of Revolving Credit Loans owed to each Lender shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect be equal to such Incremental Commitments or Incremental Term Loans Lender’s Revolving Credit Percentage (except as in effect after the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(aapplicable Commitment Increase Date) or 13.1(c) at the time of the consummation outstanding principal amount of such Limited Condition Transaction); (ii) all other fees Revolving Credit Loans. The participation interests of the Revolving Credit Lenders in Letters of Credit and expenses owing in respect of such increase Swingline Advances shall be similarly adjusted. On any Commitment Increase Date those Revolving Credit Lenders whose Revolving Credit Percentage is increasing shall advance the funds to the Administrative Agent and the Lenders will have been paid; (iii) the Company funds so advanced shall be in pro forma compliance with each distributed among the Revolving Credit Lenders whose Revolving Credit Percentage is decreasing as necessary to accomplish the required reallocation of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term outstanding Revolving Credit Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making effective date of any Incremental each increase in the Aggregate Revolving Credit Commitment, Term Loan A Commitments and/or Term Loan B Commitments pursuant to this Section 2.23, the Administrative Agent may unilaterally revise Schedule 1.1 to reflect the then current Commitments of each Lender and shall provide a copy thereof to each Lender.
(f) Notwithstanding anything to the contrary contained herein, the obligation of the Administrative Agent and the Revolving Credit Lenders to increase the Aggregate Revolving Credit Commitment, the Administrative Agent and the Term Loan A Lenders to increase the Term Loan A Commitments or the Administrative Agent and the Term Loan B Lenders (including any Persons that elect to become Term Loan B Lenders) to increase the Term Loan B Commitments, as applicable, pursuant to this Section 2.23 shall be conditioned upon satisfaction of the following conditions precedent which must be satisfied prior to the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans increase of the applicable facility Aggregate Revolving Credit Commitment, the Term Loan A Commitments or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Term Loan B Commitments, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such efforts.applicable:
Appears in 1 contract
Sources: Credit Agreement (Inland Real Estate Income Trust, Inc.)
Increase in Commitment. 107599586\V-16 US_Active\115440519\V-15
(a) The Company mayProvided that no Unmatured Default or Default has occurred and is continuing, subject to the terms and conditions set forth in this Section 2.23, the Borrower shall have the option at its option any time after and from time to time prior to the 2019 Restatement Effective date that is at least thirty (30) days prior to the Facility Termination Date and before to request an increase in the Termination DateAggregate Revolving Credit Commitment, seek to (i) increase the Commitments (any such increase, a “Commitment Increase”) or (ii) establish one or more new term loan commitments (“Term Loan A Commitments and/or the Term Loan B Commitments” and, together with any Commitment Increaseeach in increments of $10,000,000, by an aggregate amount of increases to the Aggregate Revolving Credit Commitment, the “Incremental Term A Loan Commitments and Term Loan B Commitments of up to $350,000,000 (the amount of the requested increase to be set forth in the Increase Notice) (which, assuming no previous reduction in the Revolving Credit Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon Loan A Commitments or the Term Loan B Commitments, would result in an Aggregate Commitment of $700,000,000), written notice to the Administrative Agent; provided that, subject to Agent (an “Increase Notice”). The execution and delivery of the calculation adjustments Increase Notice by the Borrower shall constitute a representation and warranty by the Borrower that all the conditions set forth in this Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, 2.23 shall have been satisfied on the aggregate principal amount date of all Incremental Commitments shall not exceed the greater of such Increase Notice. The Commitment Increase may be allocated (x1) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental then existing Revolving Credit Commitments, having the same terms as the existing Revolving Credit Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof2) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) then existing Term Loan A Commitments having the amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, same terms as the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Companyexisting Term Loan A Commitments, (ii3) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with initial Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default B Commitment, or Event of Default has occurred and is continuing and shall specify (i) once the amount of such initial Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established B Commitment is provided hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an then existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan B Commitments of such tranche, (C) any amortization applicable to having the Incremental Term Loans of such tranche, (D) same terms as the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or existing Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective B Commitments, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such efforts.or
Appears in 1 contract
Sources: Credit Agreement (Inland Real Estate Income Trust, Inc.)
Increase in Commitment. (i) So long as (a) The Company no Default or Unmatured Default has occurred and is continuing, and (b) the Borrower has not terminated or reduced in part any unused portion of the Commitments at any time pursuant to Section 2.5, the Borrower may, at its option any time after the 2019 Restatement Effective Date and before the Termination Datefrom time to time, seek to (i) increase the Commitments (any such increase, a “Commitment Increase”) or (ii) establish one or more new term loan commitments (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written by notice to the Administrative Agent; provided that, subject to request, not more than two (2) times each calendar year, an increase in the calculation adjustments Aggregate Commitment within the limitations hereafter described, which notice shall set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, the aggregate principal amount of all Incremental Commitments shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such increase. In accordance with Section 2.6(iv), the Aggregate Commitment Increase may be so increased either by having one or more Purchasers that have been approved by the Borrower and the Administrative Agent become Lenders and/or by having any one or more of the then existing Lenders (which at their respective election in their sole discretion) increase the amount of their Commitment ("Increasing Lenders"), provided that (A) the Commitment of any Purchaser shall not be less than $10,000,000 or, if less, and the maximum sum of the Commitments of the Purchasers and the increases in the Commitments of the Increasing Lenders shall be in an aggregate amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent $10,000,000 (unless otherwise agreed by the Administrative Agent and, if in its sole discretion) and excess thereof, in integral multiples of $5,000,000); (iiiB) the identity aggregate amount of each Incremental Lender all the increases in the Aggregate Commitment pursuant to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which this Section 2.6 shall not be unreasonably withheld, may allocate exceed $75,000,000; (C) the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative AgentBorrower, each Issuing Lender, the Swing Line Purchaser and/or each Increasing Lender and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have executed and delivered to the Administrative Agent a document commitment and acceptance (the "Commitment and Acceptance") substantially in the form of Exhibit F hereto, and the Administrative Agent shall have accepted and executed the same, (D) if requested by the Purchaser and/or the Increasing Lenders, the Borrower shall have executed and delivered to the Administrative Agent a Note or Notes payable to the order of each Purchaser and/or each Increasing Lender, each such Note to be in the amount of such Purchaser's Commitment or such Increasing Lender's Commitment (as applicable), (E) the Guarantors shall have consented in writing to the new Commitments or increases in Commitments (as applicable) and shall have agreed that their Guaranty continue in full force and effect, and (F) the Borrower, each Purchaser and/or each Increasing Lender shall otherwise have executed and delivered such other instruments and documents as the Administrative Agent shall have reasonably satisfactory requested in connection with such new Commitment or increase in the Commitment (as applicable). The form and substance of the documents required under clauses (C) through (F) above shall be reasonably acceptable to the Administrative Agent. The Administrative Agent shall provide prior written notice to all of the Lenders hereunder of the admission of any Purchaser or the increase in the Commitment of any Increasing Lender hereunder and shall furnish to each of the Lenders copies of the documents required under clause (C), (E) and (F) above.
(ii) Upon the effective date of any increase in the Aggregate Commitment pursuant to the provisions hereof ("Increase Date"), which Increase Date shall be mutually agreed upon by the Borrower, each Purchaser, each Increasing Lender and the Administrative Agent, each Purchaser and/or Increasing Lender shall make a payment to the Administrative Agent in an amount sufficient, upon the application of such payments by all Purchasers and Increasing Lenders to the reduction of the Outstanding Credit Exposures of the Lenders (including the Increasing Lenders), to cause the Outstanding Credit Exposures of each Lender to be equal to each Lender's Pro Rata Share of the Aggregate Commitment as so increased. The Borrower hereby irrevocably authorizes each Purchaser and/or each Increasing Lender to fund to the Administrative Agent the payment required to be made pursuant to the immediately preceding sentence for application to the reduction of the Outstanding Credit Exposures of the Lenders, and each such payment shall constitute a Loan hereunder. If, as a result of the repayment of the Outstanding Credit Exposures provided for in this Section 2.6(ii), any payment of a Eurodollar Loan occurs on a day which is not the last day of the applicable Interest Period, the Borrower will pay to the Administrative Agent for the benefit of any of the Lenders (including any Increasing Lender to the extent of Eurodollar Loans held by such Increasing Lender prior to such Increase Date) holding a Eurodollar Loan any loss or cost incurred by such Lender resulting therefrom in accordance with Section 3.4. Upon the Increase Date, all Loans outstanding hereunder (including any Loans made by the Purchasers and/or Increasing Lenders on the Increase Date) shall be Floating Rate Loans, subject to the Borrower's right to convert the same to Eurodollar Loans on or after such date in accordance with the provisions of Section 2.10.
(iii) Upon the Increase Date and the making of the Loans by the Purchasers and/or Increasing Lenders in accordance with the provisions of Section 2.6(ii), each Purchaser and/or each Increasing Lender shall also be deemed to have irrevocably and unconditionally purchased and received without recourse or warranty, from the Lenders immediately prior to the Increase Date, an undivided interest and participation in any Facility LC and Swing Line Advance, as applicable, then outstanding, ratably, such that each Lender (including each Purchaser) holds a participation interest in each such Facility LC and Swing Line Advance, as applicable, in proportion to such Lender's Pro Rata Share.
(iv) Upon the notice by the Borrower to the Administrative Agent pursuant to which any such Incremental Lender states Section 2.6(i) hereof, each of the amount of then existing Lenders shall have the right (at its election) to increase its Commitment Increase by an amount equal to such Lender's Pro Rata Share of the proposed increase in the Aggregate Commitment. If less than all of the proposed increase in Aggregate Commitment is elected by the existing Lenders, then any of the then existing Lenders shall have the right to increase its Commitment in an amount greater than such Lender's Pro Rata Share of the proposed increase in the Aggregate Commitment with the Administrative Agent's approval. In the event the sum of each Purchaser's Commitment and agrees the increase in each Increasing Lender's Commitment is less than the requested increase in the Aggregate Commitment, the Borrower may elect to assume and accept the obligations and rights of a Lender hereunder, and increase in the Company accepts Aggregate Commitment to be equal to such new Commitments.
(c) Any such notice delivered lesser amount. Notwithstanding anything to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Companycontrary contained herein, the Administrative Agent and one shall not be liable for any failure to obtain Increasing Lenders or more Incremental Lenders may, and without Purchasers hereunder or for any failure to increase the consent of any other Lender, amend this Agreement Aggregate Commitment by the amount so requested by the Borrower pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving LoansSection 2.6(i), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment.
(dv) Notwithstanding the foregoing, no Incremental Commitments Nothing contained herein shall constitute or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall otherwise be deemed to be a “Lender” commitment or agreement on the part of any Lender to increase its Commitment hereunder at any time. No Lender (and a Lender in respect of Loans of except only for itself) shall have the applicable facility or trancheright to decline Borrower's request pursuant to Section 2.6(i) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the for an increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such effortsAggregate Commitment.
Appears in 1 contract
Sources: Credit Agreement (Centex Construction Products Inc)
Increase in Commitment. (a) The Provided there exists no Default, the Company on behalf of the Borrowers and Guarantors may, at its option on any time after the 2019 Restatement Effective Date and before the Termination Date, seek to (i) increase the Commitments (any such increase, a “Commitment Increase”) Business Day on or (ii) establish one or more new term loan commitments (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice prior to the Administrative Agent; provided that, subject to the calculation adjustments set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, the aggregate principal amount of all Incremental Commitments shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days ninetieth day after the date on which such notice is delivered to hereof, with the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the written consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of the Administrative Agent, each Issuing Lender, increase the Swing Line Lender and aggregate amount of the Company which have expressed Revolving Loan Commitments by delivering a desire Commitment Amount Increase Request at least 5 Business Days prior to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender desired effective date of such revised allocations of increase (the Commitments, including the desired increase. No "COMMITMENT AMOUNT INCREASE") identifying an additional Bank (or additional Revolving Loan Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase agreed to be made by any existing Bank) and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Revolving Loan Commitment (or additional amount of its Revolving Loan Commitment); PROVIDED, HOWEVER, that any increase of the aggregate amount of the Revolving Loan Commitments to an amount in excess of $375,000,000 will require the approval of the Required Banks. The effective date of the Commitment Amount Increase and agrees to assume and accept shall be agreed upon by the obligations and rights of a Lender hereunder, Company and the Company accepts such Administrative Agent. Upon the effectiveness thereof, each new Commitments.
Bank (c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if lessapplicable, the maximum amount of Incremental Commitments remaining each existing Bank which consented to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent an increase in its sole discretionRevolving Loan Commitment) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be advance Revolving Loans in an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after amount sufficient such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to its Revolving Loan each Bank shall have outstanding its PRO RATA share of Revolving Loans. It shall be a condition to such Incremental Commitments or Incremental Term effectiveness that no Eurocurrency Loans (except in be outstanding on the case date of such effectiveness and that the proceeds of Company shall not have terminated any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time portion of the consummation Total Commitment pursuant to Section 3.02 hereof. The Company agrees to pay any fees or expenses of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect relating to any Commitment Amount Increase. Notwithstanding anything herein to the contrary, all Loans no Bank shall have any obligation to increase its Revolving Loan Commitment and all such other credit exposure no Bank's Revolving Loan Commitment shall be held ratably by the Lenders in proportion to their respective Commitmentsincreased without its consent thereto, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemedBank may at its option, for all purposesunconditionally and without cause, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such effortsits Revolving Loan Commitment.
Appears in 1 contract
Sources: Global Revolving Credit Agreement (Sealed Air Corp/De)
Increase in Commitment. (a) The Company may, at its option any time after the 2019 Restatement Effective Date and before the Termination Date, seek to (i) At any time during the Commitment Increase Period, the Administrative Borrower may request that the Administrative Agent increase the Commitments Total Commitment Amount by (A) increasing the Revolving Amount, or (B) adding an additional term loan facility to this Agreement (the “Additional Term Loan Facility”) which Additional Term Loan Facility shall be subject to subsection (c) below); provided that the aggregate amount of all increases made pursuant to this subsection (b) shall not exceed Seventy Million Dollars ($70,000,000). Each such request for an increase shall be in an amount of at least Five Million Dollars ($5,000,000), increased by increments of One Million Dollars ($1,000,000), and may be made by either (1) increasing, for one or more Lenders, with their prior written consent, their respective Revolving Credit Commitments, (2) adding a new commitment for one or more Lenders, with their prior written consent, with respect to the Additional Term Loan Facility, or (3) including one or more Additional Lenders, each with a new commitment (in a minimum amount of at least Five Million Dollars ($5,000,000)) under the Revolving Credit Commitment or the Additional Term Loan Facility, as a party to this Agreement (each an “Additional Commitment” and, collectively, the “Additional Commitments”). For clarification purposes, nothing contained in this Section 2.10 shall be construed as a commitment by any Lender to make any Additional Commitment and any such increase, commitment by a “Commitment Increase”) or Lender shall be at such ▇▇▇▇▇▇’s sole and absolute discretion.
(ii) establish During the Commitment Increase Period, all of the Lenders agree that the Administrative Agent, in its sole discretion, may permit one or more new term loan commitments Additional Commitments upon satisfaction of the following requirements: (“Term Loan Commitments” andA) each Additional Lender, together with any Commitment Increaseif any, shall execute an Additional Lender Assumption Agreement, (B) the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice Administrative Agent shall provide to the Administrative Agent; provided thatBorrower and each Lender a revised Schedule 1 to this Agreement, subject including revised Applicable Commitment Percentages for each of the Lenders, if appropriate, at least three Business Days prior to the calculation adjustments set forth in Section 1.3 date of the effectiveness of such Additional Commitments (each an “Additional Lender Assumption Effective Date”), (C) the Borrowers shall execute and deliver to the Administrative Agent and the applicable Lenders such appropriate replacement or additional Revolving Credit Notes as shall be required by the Administrative Agent (if Notes have been requested by such Lender or Lenders), and (D) the Borrowers shall execute and deliver any other documents, instruments or agreements or such thereof as the Administrative Agent may reasonably require. The Lenders hereby authorize the Administrative Agent to execute each Additional Lender Assumption Agreement on behalf of the Lenders.
(iii) On each Additional Lender Assumption Effective Date with respect to any Incremental Term Loans the Specific Commitment being incurred in connection with a Limited Condition Transactionincreased, as appropriate, the aggregate principal amount Lenders shall make adjustments among themselves with respect to the Loans then outstanding and amounts of all Incremental Commitments principal, interest, commitment fees and other amounts paid or payable with respect thereto as shall be necessary, in the opinion of the Administrative Agent, in order to reallocate among such Lenders such outstanding amounts, based on the revised Applicable Commitment Percentages and to otherwise carry out fully the intent and terms of this Section 2.10(a) (and the Borrowers shall pay to the Lenders any amounts that would be payable pursuant to Section 3.3 hereof if such adjustments among the Lenders would cause a prepayment of one or more Loans). In connection therewith, it is understood and agreed that the Maximum Amount of any Lender will not be increased without the prior written consent of such Lender. The Borrowers shall not exceed request any increase in the greater Total Commitment Amount pursuant to this subsection (b) if a Default or an Event of (x) $500,000,000 and (y) such other amount such that Default shall then exist, or, after giving pro forma effect to the incurrence of any such Incremental Commitments and the use of proceeds thereof increase (assuming that all amounts thereunder are drawn in full but without netting any including a pro forma calculation of the proceeds thereof) financial covenants set forth in Section 5.7 hereof), would exist. At the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any time of any such notice delivered to increase, at the Administrative Agent in connection with a Commitment Increase shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each request of the Administrative Agent, each Issuing Lender, the Swing Line Lender Credit Parties and the Company which have expressed a desire Lenders shall enter into an amendment to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender evidence such increase and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form address related provisions as reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default deemed necessary or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed appropriate by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan AmendmentAgent.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such efforts.
Appears in 1 contract
Sources: Credit and Security Agreement (AvidXchange Holdings, Inc.)
Increase in Commitment. (a) The Company may, at its option At any time after prior to the 2019 Restatement Effective Date and before date that is thirty days prior to the Termination Date, seek to if no Default shall have occurred and be continuing (i) or would result after giving effect thereto), the Company may, if it so elects, increase the Commitments aggregate amount of the Revolving Commitment (any each such increaseincrease to be in an aggregate amount that is an integral multiple of $500,000 and not less than $5,000,000) (the “Increased Revolving Amount”), a “Commitment Increase”) or (ii) establish first, by agreeing with one or more new term loan commitments (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) of an existing tranche of term loans or a separate tranche of new term loans (any Lenders that such term loans, the “Incremental Term Loans”) upon written notice to the Administrative Agent; provided that, subject to the calculation adjustments set forth in Section 1.3 with respect to any Incremental Term Loans being incurred in connection with a Limited Condition Transaction, the aggregate principal amount of all Incremental Commitments shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00.
(b) Any such notice delivered to the Administrative Agent in connection with a Commitment Increase Lenders’ respective Pro Rata Share shall be delivered at a time when increased to include the Increased Revolving Amount, or if no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Commitment Increase (which shall not be less than $10,000,000 orexisting Lender agrees to increase its Pro Rata Share, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought then by the Company, (ii) the date (each, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender to whom the Company proposes any portion of such Commitment Increase be allocated and the amounts of such allocations. The Administrative Agent, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender (including in its sole discretion)) on either a ratable basis to the Lenders or on a non pro-rata basis to designating one or more Lenders and/or financial institutions not theretofore a Lender to other Eligible Assignees reasonably acceptable become a Lender (such designation to each be effective only with the prior written consent of the Administrative Agent, which consent will not be unreasonably withheld or delayed, and only if each Issuing Lendersuch financial institution accepts to fund, as the case may be, the Swing Line Lender Increased Revolving Amount). Lasalle and its Affiliates will use their best efforts to arrange financial institutions to provide such increases with arrangement fees paid as agreed at such time. Upon execution and delivery by the Company which and each such Lender or other financial institution of an instrument (an “Increased Revolving Amount Acceptance”) in form reasonably satisfactory to the Administrative Agent, such Lender shall have expressed the commitment to loan the Increased Revolving Amount as therein set forth, or such other financial institution shall become a desire Lender with a commitment to accept loan the Increased Revolving Amount as therein set forth, and all the rights and obligations of a Lender with a Revolving Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender hereunder; provided:
(a) that the Company shall provide prompt notice of such revised allocations of increase to the CommitmentsAdministrative Agent, including which shall promptly notify the desired increase. No Commitment Increase shall become effective until each of the Incremental Lenders extending such Commitment Increase and respective Lenders;
(b) that the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to copy of the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunder, and the Company accepts such new Commitments.Increased Revolving Amount Acceptance;
(c) Any such notice delivered to the Administrative Agent in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) that the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount DateRevolving Amount, which shall be a date not less than ten Business Days after together with all other Increased Revolving Amounts pursuant to this Section 2.1.4 since the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forth, to the extent applicable, the following terms of such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a new and separate tranche, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans), and implementing such additional amendments to this Agreement as shall be appropriate to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such trancheAgreement, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line Lender. Except as contemplated by the preceding sentence, the terms of any Incremental Term Loans established under this Section shall be the same as those of the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would does not be permitted under Section 15.1 without the consent of such Lender unless such consent shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flow. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Amendment.exceed $50,000,000;
(d) Notwithstanding the foregoingthat, no Incremental Commitments or Incremental Term Loans shall be made or established, before and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans the Increased Revolving Amount, the representations and warranties of the Company contained in Section 9 of this Agreement shall be true and correct in all material respects; and
(except in the case e) that the proceeds Administrative Agent shall have received such evidence (including an opinion of the Company’s counsel) as it may reasonably request to confirm the Company’s due authorization of the transactions contemplated by this Section 2.1.4 and the validity and enforceability of the obligations of the Company resulting therefrom. On the date of any Incremental Term Loans are being used such increase, the Company shall be deemed to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase have represented to the Administrative Agent and the Lenders will have been paid; (iii) that the Company shall be in pro forma compliance with each of the covenants conditions set forth in Section 11.12 clauses (giving effect, if applicable, to the provisos theretoa) as of the last day of the most recently ended Fiscal Quarter (or, in the case that the proceeds of any Incremental Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase or Incremental Term Loans and other customary and appropriate pro forma adjustment events, including any Acquisitions or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
through (e) above have been satisfied. Upon any increase in the making aggregate amount of any Incremental Term Loan or the effectiveness of any Incremental Revolving Commitment of any Incremental Lender that is not already a Lender pursuant to this SectionSection 2.1.4, such Incremental each existing Lender whose Revolving Commitment has not increased pursuant to this Section 2.1.4 (each, a “Non-Increasing Lender”) shall be deemed, without further action by any party hereto, to have sold to each Lender whose Revolving Commitment has been assumed or increased under this Section 2.1.4 (each, an “Increased Revolving Loan Lender”), and each Increased Revolving Loan Lender shall be deemed deemed, without further action by any party hereto, to be have purchased from each Non-Increasing Lender, a “participation in each Swing Line Loan and Letter of Credit in which such Non-Increasing Lender has acquired a participation in an amount equal to such Increased Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunder’s Pro Rata Share thereof, and henceforth shall be entitled to until such time as all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Swing Line Loans and all such other credit exposure shall be Letters of Credit are held ratably by the Lenders in proportion to their respective Commitments, as revised Revolving Commitment after giving effect to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Increased Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such efforts.
Appears in 1 contract
Sources: Credit Agreement (Multi Color Corp)
Increase in Commitment. (a) The Company Borrower, on behalf of the Borrower and Guarantors, may, at its option on any time Business Day after the 2019 Restatement Effective Date and before date hereof, increase the Termination Dateaggregate amount of the Revolving Credit Commitments and/or outstanding Term Loans and/or create one or more additional tranches of term loans (each additional tranche of term loans, seek to an “Incremental Term Loan”); provided, however, that (i) increase any Commitment Amount Increase or Incremental Term Loan that results in the sum of the aggregate Revolving Credit Commitments plus the aggregate original principal amount of the Term Loans and Incremental Term Loans to be in excess of $2,900,000,000 minus, to the extent not utilized by the Borrower on or prior to August 25, 2013, up to $115,000,000, will require the approval of the Required Banks (and in all other cases, no approval or consent of any Bank shall be required except the Banks providing such increaseCommitment Amount Increase or Incremental Term Loan and the consents contemplated by clause (v) below), a “Commitment Increase”) or (ii) establish one or more new term loan commitments (“Term Loan Commitments” and, together with any Commitment Increase, the “Incremental Commitments”) Amount Increase or issuance of an existing tranche of term loans or a separate tranche of new term loans (any such term loans, the “Incremental Term Loans”) upon written notice Loans shall be in an amount not less than $50,000,000 (or such lesser amount as may be acceptable to the Administrative Agent; provided that), subject to (iii) no Default shall have occurred and be continuing at the calculation adjustments set forth in Section 1.3 with respect to any time of the request or the effective date of the Commitment Amount Increase or issuance of Incremental Term Loans being incurred or will result therefrom, (iv) all representations and warranties contained in connection with Article 4 hereof shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) at the time of such request and on the effective date of such Commitment Amount Increase or issuance of Incremental Term Loans (other than representations and warranties that relate to a Limited Condition Transactionspecific date, which shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such date), and (v) the aggregate principal amount Administrative Agent and, in the case of all Incremental Commitments an increase in the Revolving Credit Commitment, each Letter of Credit Issuer and the Swing Line Lender, shall have provided their written consent (which consents shall not exceed the greater of (x) $500,000,000 and (y) such other amount such that after giving pro forma effect to the incurrence of such Incremental Commitments and the use of proceeds thereof (assuming that all amounts thereunder are drawn in full but without netting any of the proceeds thereof) the Total Debt to EBITDA Ratio would not exceed 3.50 to 1.00be unreasonably withheld).
(b) Any such notice delivered In order to request an increase in the Revolving Credit Commitments and/or outstanding Term Loans, the Borrower shall deliver a Commitment Amount Increase Request to the Administrative Agent at least five (5) Business Days (or such shorter period of time agreed by the Administrative Agent) prior to the desired effective date of such increase (the “Commitment Amount Increase”) identifying an additional Bank(s) (or additional Revolving Credit Commitments and/or Term Loans for existing Bank(s)) and the amount of its Revolving Credit Commitment and/or Term Loans (or additional amount of its Revolving Credit Commitment(s) and/or Term Loans). The Borrower, the Administrative Agent, and each Bank and/or new Bank advancing an additional Term Loan shall agree in the relevant Commitment Amount Increase Request as to the amortization schedule of such additional Term Loan; provided that (i) such additional Term Loans shall have a weighted average life to maturity no lower than the remaining weighted average life to maturity of the outstanding Term Loans and (ii) no such amortization schedule shall have the effect of reducing the amortization payments scheduled to be made to the Banks that are not increasing their Term Loans. Upon the effectiveness thereof, the new Bank(s) (or, if applicable, existing Bank(s)) (i) shall advance Loans in an amount sufficient such that after giving effect to its Loans each Bank shall have outstanding its respective Percentage of all Loans of the relevant Credit and (ii) in the case of the Revolving Credit, shall acquire its Revolver Percentage of all participations in Letter of Credit Outstandings and Swing Loans. It shall be a condition to such effectiveness that (i) if any Euro-Dollar Loans are outstanding on the date of such effectiveness, Section 2.13 shall apply and (ii) if such Commitment Amount Increase is to the Revolving Credit Commitments, the Borrower shall not have terminated any portion of the Revolving Credit Commitments pursuant to Section 2.8 hereof. The Borrower and each Guarantor agree to deliver to the Administrative Agent such corporate due diligence documents as the Administrative Agent shall reasonably request in connection with a any Commitment Amount Increase. Promptly upon the effectiveness of any Commitment Amount Increase, the Borrower, if requested by any new Bank, shall execute and deliver new Notes to each requesting Bank. The effective date of any Commitment Amount Increase shall be delivered at a time when agreed upon by the Borrower and the Administrative Agent.
(A) The Incremental Term Loans (i) may be unsecured or may be secured by liens on any or all assets of the Borrower and the Guarantors, as determined by the Borrower and the lenders of the Incremental Term Loans (and if so secured, the Term Loans and Revolving Loans shall be secured equally and ratably by liens on the same assets; provided that, to the extent the Incremental Term Loans (and any replacement financing) are paid and satisfied in full, or any liens granted to secure the Incremental Term Loans (and any replacement financing) are released, the ratable liens granted to secure the Term Loans and Revolving Loans shall, so long as no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) exists, upon the amount of such Commitment Increase (which shall not Borrower’s written request, also be less than $10,000,000 or, if less, the maximum amount of Incremental Commitments remaining to be established hereunder) sought by the Companyreleased), (ii) shall rank pari passu in right of payment and of security with the date (eachTerm Loans and Revolving Loans and shall have the same guarantors as the Term Loans and the Revolving Loans, an “Increased Amount Date”) on which the Company proposes that such Commitment Increase shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) shall not mature earlier than the identity latest Extended Maturity Date, (iv) shall not have a lower weighted average life to maturity than the remaining weighted average life to maturity of each Incremental Lender the outstanding Term Loans, (v) shall have an amortization schedule (subject to whom clause (iv)), provisions relating to optional and, to the Company proposes any portion of such Commitment Increase be allocated extent applied pro rata to the Term Loans and the amounts of such allocations. The Administrative AgentIncremental Term Loans, subject to the consent of the Company, which shall not be unreasonably withheld, may allocate the Commitment Increase (which may be declined by any Lender mandatory prepayments (including in its sole discretionmandatory repurchase offers), and a Base Rate Margin, a Euro-Dollar Margin, rate floors, fees, premiums, funding discounts and other pricing terms (including a “MFN clause” allowing for repricing upon incurrence of subsequent Incremental Term Loans) on either a ratable basis to for the Lenders or on a non pro-rata basis to one or more Lenders and/or to other Eligible Assignees reasonably acceptable to each of Incremental Term Loans as determined by the Administrative Agent, each Issuing Lender, the Swing Line Lender Borrower and the Company which have expressed a desire to accept the Commitment Increase. The Administrative Agent will then notify each existing Lender and Incremental Lender of such revised allocations of the Commitments, including the desired increase. No Commitment Increase shall become effective until each lenders of the Incremental Lenders extending such Commitment Increase and the Company shall have delivered to the Administrative Agent a document in form reasonably satisfactory to the Administrative Agent pursuant to which any such Incremental Lender states the amount of its Commitment Increase and agrees to assume and accept the obligations and rights of a Lender hereunderTerm Loans, and (vi) may not otherwise have terms and conditions different from those of the Company accepts such new CommitmentsTerm Loans and Revolving Loans.
(cB) Any such notice delivered to the Administrative Agent Commitments in connection with Term Loan Commitments shall be delivered at a time when no Unmatured Event of Default or Event of Default has occurred and is continuing and shall specify (i) the amount of such Term Loan Commitments (which shall not be less than $25,000,000 or, if less, the maximum amount respect of Incremental Term Loans shall become Commitments remaining to be established hereunder) sought by the Company, (ii) the Increased Amount Date, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent (unless otherwise agreed by the Administrative Agent in its sole discretion) and (iii) the identity of each Incremental Lender. Each Incremental Lender, if not already a Lender hereunder, shall be an Eligible Assignee and reasonably acceptable to the Administrative Agent and no Lender shall be required to participate in any Incremental Term Loans. On or after such Increased Amount Date, the Company, the Administrative Agent and one or more Incremental Lenders may, and without the consent of any other Lender, amend under this Agreement pursuant to an amendment agreement (an “Incremental Term Loan Amendment”) setting forthto this Agreement and, to the extent applicableas appropriate, the following terms of other Credit Documents, executed by the Borrower, each Guarantor, each Bank agreeing to provide such Incremental Term Loans: (A) whether such Incremental Term Loans will be part of an existing tranche of Incremental Term Loans or part of a Commitment, if any, each new and separate trancheBank, (B) the maturity or termination date applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (C) any amortization applicable to the Incremental Term Loans of such tranche, (D) the interest rate or rates applicable to the Incremental Term Loans of such tranche, (E) the fees applicable to the Incremental Term Loans or Term Loan Commitments of such tranche, (F) any original issue discount applicable to Incremental Term Loans or Term Loan Commitments of such tranche, (G) the initial Interest Period or Interest Periods applicable to Incremental Term Loans or Term Loan Commitments of such tranche and (H) any voluntary or mandatory prepayment requirements or Term Loan Commitment reductions applicable to Incremental Term Loans or Term Loan Commitments of such tranche and any restrictions on the voluntary or mandatory prepayment or reduction of Incremental Term Loans or Term Loan Commitments of tranches established after such tranche (it being understood that any such mandatory prepayments may be applied to Term Loans prior to being applied to any Revolving Loans)if any, and implementing the Administrative Agent. The Incremental Amendment shall not, except as specified in the preceding sentence, require the consent of any Bank, and may effect such additional amendments to this Agreement and the other Credit Documents as shall may be appropriate necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The Banks hereby authorize the Administrative Agent to execute such other documents, instruments and agreements, including security agreements, as may be necessary in the reasonable opinion of the Administrative Agent to give effect to the foregoing terms and to provide the rights and benefits of this Agreement and other Loan Documents to the Incremental Term Loans of such tranche, and such amendment will be effective to amend this Agreement and the other Loan Documents on the terms set forth therein without the consent of any other Lender or the Swing Line LenderAmendment. Except as contemplated by the preceding sentence, the terms The effectiveness of any Incremental Term Loans established under this Section Amendment shall be subject to the same as those of satisfaction on the Incremental Term Loans existing at the time such new Incremental Term Loans were made. Notwithstanding the foregoing, (1) except as provided in clauses (A) through (H) above, no Incremental Term Loan Amendment shall alter the rights of any Lender (other than the Incremental Lenders) in a manner that would not be permitted under Section 15.1 without the consent date thereof of such Lender unless such consent conditions as the parties thereto shall have been obtained and (2) no Incremental Term Loans shall (A) have a maturity date earlier than the Latest Maturity Date without the prior written consent of Lenders holding a majority of the principal amount of the Commitments or the Incremental Term Loans of any tranche maturing prior to such date, (B) have scheduled amortization of more than 5% of the original principal amount of such Incremental Term Loan per annum or (C) have mandatory prepayment terms other than customary mandatory prepayments from proceeds of assets sales and casualty events (with customary reinvestment rights), the incurrence of Debt not otherwise permitted hereunder and annual excess cash flowagree. The Administrative Agent shall promptly notify each Lender as to Borrower will use the effectiveness proceeds of each Incremental Term Loan Amendmentfor any purpose permitted by Section 5.8.
(d) Notwithstanding the foregoing, no Incremental Commitments or Incremental Term Loans shall be made or established, and no Incremental Term Loan Amendment shall become effective, unless (i) no Unmatured Event The Borrower agrees to pay any reasonable out-of-pocket expenses of Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments or Incremental Term Loans (except in the case that the proceeds of any Incremental Term Loans are being used to finance a Limited Condition Transaction, in which case the standard will be no Event of Default or Unmatured Event of Default on the LCT Test Date and no Event of Default under Sections 13.1(a) or 13.1(c) at the time of the consummation of such Limited Condition Transaction); (ii) all other fees and expenses owing in respect of such increase to the Administrative Agent relating to any Commitment Amount Increase and the Lenders will have been paid; (iii) the Company shall be in pro forma compliance with each of the covenants set forth in Section 11.12 (giving effect, if applicable, any Incremental Amendment. Notwithstanding anything herein to the provisos thereto) as of the last day of the most recently ended Fiscal Quarter (orcontrary, in the case that the proceeds of no Bank shall have any Incremental obligation to increase its Revolving Credit Commitment or advance additional Term Loan are being used to finance a Limited Condition Transaction, as of the last day of the most recently ended Fiscal Quarter prior to the applicable LCT Test Date) after giving effect to such Commitment Increase Loans or Incremental Term Loans and other customary no Bank’s Revolving Credit Commitment shall be increased without its consent thereto, and appropriate pro forma adjustment eventseach Bank may at its option, including any Acquisitions unconditionally and without cause, decline to increase its Revolving Credit Commitment or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Commitments advance additional Term Loans or Incremental Term Loans, as the case may be, and provided that for purposes of calculating the Total Debt to EBITDA Ratio, any Commitment Increases that are drawn substantially simultaneous with the effectiveness of such Commitment Increase shall be given pro forma effect; and (iv) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) Upon the making of any Incremental Term Loan or the effectiveness of any Incremental Commitment of any Incremental Lender that is not already a Lender pursuant to this Section, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Loans of the applicable facility or tranche) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of the applicable facility or tranche) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of the applicable facility or tranche) hereunder. After giving effect to any Commitment Increase, all Loans and all such other credit exposure shall be held ratably by the Lenders in proportion to their respective Commitments, as revised to reflect the increase in the Commitments. The terms of any such Commitment Increase and the extensions of credit made pursuant thereto shall be identical to those of the other Commitments and the extensions of credit made pursuant thereto. Each Commitment Increase shall be deemed for all purposes a Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan. The Administrative Agent may elect or decline to arrange the increase in Commitment sought by the Company but is under no obligation to arrange or consummate any such increase. The Company will cooperate with the Administrative Agent in such efforts.
Appears in 1 contract