Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that: (i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap; (ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i); (iii) no existing Lender shall be required to provide any Additional Commitments; (iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period; (v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans; (vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ); (vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders; provided that in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans; (viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities; (ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and (x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders. (b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental Cap. (c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b). (d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20. (e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (Virtus Investment Partners, Inc.), Credit Agreement (Virtus Investment Partners, Inc.)
Increase in Commitments. (a) The Borrower may at any time or from time to time after the Effective Date, by written notice to the Administrative Agent elect (whereupon the Administrative Agent shall promptly deliver a copy to seek each of the Lenders), request (x) one or more new commitments which may be of the same Class as any outstanding Term Loans (a “Additional Revolving CommitmentsTerm Loan Increase”) to increase the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing or a new Class of Term Loans (collectively with any Term Loan Increase, the “Incremental Term Loans”), or to establish (y) one or more new Classes increases in the amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”, together with any Incremental Term Loans; , referred to herein as an “Incremental Facility”), provided that:
that (i) at the aggregate amount time of all Additional Commitments each such request and upon the effectiveness of each Incremental Facility, (x) no Default or Event of Default has occurred and is continuing or would result therefrom (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, (A) no Event of Default shall not exceed be continuing at the Incremental Cap;
time of execution of the applicable contract or agreement for such acquisition and (B) no Event of Default under Sections 7.01(a), (b), (h) or (i) shall be continuing at the time of making such acquisition)) and (y) the condition in Section 4.02(b) shall be satisfied (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, such representations shall be limited to the Specified Representations (as defined in the Existing Credit Agreement, which shall be conformed as reasonably necessary for such acquisition to provide for certainty of funding in connection with such transaction) ), (ii) no Lender shall be Table of Contents obligated to provide an Incremental Facility as a result of any such increase or request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Facility and executed and delivered to the Administrative Agent and the Borrower an Incremental Facility Agreement as provided in clause (c) of this Section 2.23, such Lender shall not be obligated to fund any new Class Incremental Facility, (iii) any Lender may so provide an Incremental Facility without the consent of any other Lender, (iv) Incremental Facilities shall be denominated in dollars, (v) the Incremental Loan Commitment Requirements shall have been satisfied, and (vi) the provision of Incremental Facilities pursuant to this Section 2.23 on a given date pursuant to a particular Incremental Facility Agreement shall be in an a minimum aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; 5,000,000 (provided that such amount may be less than $10,000,000 5,000,000 if such amount represents all remaining availability under the limit set forth in the preceding next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Facilities shall not exceed the sum of (the “Incremental Cap”): (i) $75,000,000 plus (ii) an amount so long as, in the case of this clause (iii);, the First Lien Net Leverage Ratio would not exceed 0.25:1.00 below the First Lien Net Leverage Ratio on the First Amendment Effective Date, calculated at the time of incurrence on a pro forma basis after giving effect thereto and the application of the proceeds thereof, and assuming any such Incremental Facility is secured on a first lien basis, whether or not so secured (and, in the case of any Revolving Commitment Increase, assuming a full drawing of such Revolving Commitment Increase). The amount of such Incremental Facility together with any Incremental Equivalent Debt shall not exceed the Incremental Cap.
(iiib) no existing Lender The Incremental Term Loans (i) shall be required rank pari passu in right of payment and pari passu or junior (subject to provide any Additional Commitments;
(ivan intercreditor agreement reasonably satisfactory in form and substance to the Administrative Agent) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with respect to security with the Financial Performance Covenant recomputed existing Term Loans, shall not be guaranteed by any Person that has not guaranteed the existing Term Loans and shall not be secured by assets other than Collateral; (assuming the applicable Additional Revolving Commitments established ii) shall mature on such date are fully drawn and without netting amortize on such schedule as each may be agreed by the cash proceeds of any Additional Borrower and the Lenders providing such Incremental Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) Loan, provided that, as of the last day of the Test Period;
(v) the final maturity date of any Additional incurrence, no Incremental Term Loans Loan shall be no mature earlier than the Latest Term Maturity Date applicable to and, as of the date of incurrence, each Class of Incremental Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans Loan shall have a Weighted Average Life to Maturity equal to or greater that is no shorter than the then remaining Weighted Average Life to Maturity of each Class of the existing Term Loans outstanding prior Loans; (iii) except with respect to such proposed incurrence of Additional Term Loans the applicable interest rate (it being understood that, subject to the foregoing requirements of clause (e) below) and as set forth in this clause (vib), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be on terms and pursuant to documentation determined by the Borrower and the Additional Term Lenders; provided that in Lenders providing the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Incremental Term Loans;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (Biv) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share may participate on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a or less than pro rata basis (but in no event not on a greater than pro rata basisbasis (except in respect of any voluntary prepayments of any Class of Loans with an earlier maturity date than any other Class of Loans)) in any voluntary or mandatory prepayments of Loans hereunder; and
and (v) may include any Previously Absent Financial Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Covenant for the benefit of each Class (provided, however, that if (x) the documentation governing any Additional Incremental Facility that includes a Previously Absent Financial Covenant in respect of and for the benefit of an Incremental Revolving Commitment only and (y) such Previously Absent Financial Covenant is a “springing” financial maintenance covenant solely for the benefit of a Class of Revolving Loans (and not any Class of Term Loans), the Previously Absent Financial Covenant shall have only be required to be included in this Agreement for the same maturity dates and be on benefit of Revolving Loans); provided that (x) the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation conditions applicable to the Revolving Commitments of such Class Incremental Loans may also include any additional or different financial or other covenants or other provisions that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as are agreed between the Borrower and the Additional Lenders thereof so long as such additional covenants or other provisions are applicable only during periods after the latest Maturity Date for the Term Lenders but subject to Loans in effect on the foregoing clauses (v)date the Incremental Loans are issued, (vi), (vii) incurred or obtained or the date on which all non-refinanced Obligations are paid in full and (ixy) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants terms and other terms apply solely to any period after documentation are not consistent with the Latest Maturity Date then applicable to any Class of existing Term Loans (except with respect to the applicable interest rate, upfront fees, original issue discount or similar fees and as otherwise set forth in this paragraph), such covenants or other terms apply equally for and documentation shall be reasonably satisfactory to the benefit of the other Lenders.
(b) Each such notice shall specify Administrative Agent; provided, further, that (x) the date (each, any Incremental Term Loans that rank pari passu in right of security and are issued pursuant to an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments agreement other than this Agreement shall be effective, which shall be a Business Day in the form of notes Table of Contents and not loans and (y) to the identity of extent such Incremental Term Loans rank junior with respect to security with the Persons (each of which existing Term Loans, such Incremental Term Loans shall be subject to an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver intercreditor arrangement reasonably satisfactory to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental CapAgent.
(c) On Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Borrower and the Administrative Agent and, in the case of a Revolving Commitment Increase, the Issuing Bank and each Swingline Lender shall have consented (such consents not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, as applicable. Commitments Effective Date with in respect of Incremental Facilities shall become effective pursuant to any Additional Term Commitmentan amendment (an “Incremental Facility Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Facilities, if any, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective DateLender, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender)if any, and the Additional Credit Extension Amendment may provide for Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed). The Incremental Facility Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, Borrower to effect the provisions of this Section 2.202.22. The effectiveness of any Incremental Facility Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.02 (other than as set forth in clause (a) of this Section 2.23) and such other conditions as the parties thereto shall agree.
(ed) This The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees in writing. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.20 2.23, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Credit Commitment. In addition, (x) each of the Revolving Credit Lenders immediately prior to such increase shall supersede any provisions assign to each Revolving Commitment Increase Lender and each of the Incremental Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in Section 2.18 or Section 9.02 the Incremental Revolving Loans outstanding on such Incremental Facility Agreement closing date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Credit Lenders and Revolving Commitment Increase Lender ratably in accordance with their Revolving Credit Commitments after giving effect to the contraryaddition of such Revolving Commitment Increases, (y) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (z) each Incremental Revolving Credit Lender shall become a Lender with respect to the Incremental Revolving Credit Commitments and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately two preceding sentences so long as the Revolving Lenders and Term Lenders do not receive less than pro rata treatment.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Periodsatisfied;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term LoansDate;
(vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional “Outstanding Term Loans may differLoans”);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Lenders of such Additional Term LendersLoans; provided that in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Outstanding Term Loans by more than 50 basis points, then the Applicable Rate for the Initial such Additional Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for Outstanding Term Loans, and the Applicable Rate for the Initial Term LoansRevolving Commitments (and, to the extent specified in any Additional Credit Extension Amendment for Revolving Commitments of any other Class, such other Class of Revolving Commitments) shall be increased by a like amount;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee ; provided that the obligations with respect to security interests and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances may rank junior in right of credit thereunder) unless payment or security to the Term Loans incurred on the Closing Date, or such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or may be unsecured, so long as (x) any such Additional Revolving Commitments Term Loans are established as a separate sub-facility from the Term Loans incurred on the Closing Date and (and advances y) any such Additional Term Loans ranking junior in right of credit thereunder) payment or security will not be secured by any property that does not constitute Collateral under subordinated on the existing Facilitiesterms set forth in a Junior Lien Intercreditor Agreement;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Outstanding Term Loans or, if agreed to by the lenders of Additional Term LendersLoans, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be pursuant to documentation applicable to the Outstanding Term Loans and on terms to be determined, provided that, (A) to the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to extent such Additional terms are not consistent with the Outstanding Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject (except to the foregoing clauses extent permitted by clause (v), (vi), (vii) and or (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)above), which they shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) reasonably satisfactory to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other LendersAdministrative Agent.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (ivi) the representations and warranties contained in Article III and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.20(b), the representations and warranties contained in Sections 3.04(a), (b) and (xc) shall be deemed to refer to the most recent financial statements furnished pursuant to Section 5.01(a) and (b), as applicable, (ii) subject to the second to last sentence of Section 4.02, no Default or Event of Default exists and (iii) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments are satisfied, fully drawn and setting forth without netting the calculation cash proceeds of any Additional Commitments in calculating the First Lien Net Leverage Ratio) as of the Incremental Caplast day of the most recently ended fiscal quarter of the Borrower for which financial statements have been or were required to have been delivered pursuant to Section 5.01(a) or (b) (only if such Financial Performance Covenant would be applicable at the time).
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Person with an Additional Term Lender Commitment shall make an Additional Term Loan to the Borrower in a principal amount equal to its such Person’s Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Loans (“Additional Term Loans”); provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the following conditions required to be set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test PeriodCredit Extension Amendment shall have been satisfied;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of the Term Loans outstanding prior to such proposed incurrence of Additional Term B-5 Loans;
(vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of the Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ)B-5 Loans;
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Lenders of such Additional Term LendersLoans; provided that in the event that the All-In Weighted Average Yield for any Additional Term Loans is greater than the All-In Weighted Average Yield for the Initial Term B-5 Loans by more than 50 basis points, then the Applicable Rate for the Initial Term B-5 Loans shall be increased to the extent necessary so that the All-In Weighted Average Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Weighted Average Yield for the Initial Term B-5 Loans;
(viii) all other terms of the Additional Term Loans (Aother than as set forth in clauses (iv) through (vii) above), if more restrictive, taken as a whole, than the terms of the Term B-5 Loans (as determined by the Borrower in its reasonable business judgment), such other terms shall be reasonably acceptable to the Borrower and the Administrative Agent;
(ix) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;facilities provided for herein; and
(ixx) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term B-5 Loans or, if agreed to by the lenders of Additional Term LendersLoans, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day date reasonably acceptable to Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible an Authorized Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (ivthe condition set forth in Section 2.14(a)(iv) and (x) are is satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Person with an Additional Term Lender Commitment shall make an Additional Term Loan to the Borrower in a principal amount equal to its such Person’s Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may issue one or more series of Incremental Equivalent Debt in an aggregate principal amount not to exceed, as of the date of and after giving effect to the issuance of any such Incremental Equivalent Debt, the Incremental Cap.
(e) The issuance of any Incremental Equivalent Debt pursuant to this Section 2.14, shall (i) in all cases, be subject to the terms and conditions applicable to Additional Commitments set forth under Sections 2.14(a)(i), (a)(ii), (a)(iii), (a)(v), (a)(vi), (a)(vii) (if such Incremental Equivalent Debt is in the form of term loans secured on a pari passu basis with the Term B-5 Loans) and (a)(viii), as if set forth in this Section 2.14(e), mutatis mutandis (and, for the avoidance of doubt, the interest rate, upfront fees and original issue discount for any Incremental Equivalent Debt shall be as determined by the Borrower), (ii) the covenants, events of default, guarantees and other terms of such Incremental Equivalent Debt shall be customary for similar debt instruments in light of then-prevailing market conditions at the time of issuance and in any event not materially more restrictive, taken as a whole, to the Borrower and the other Restricted Subsidiaries than those set forth in this Agreement (other than with respect to interest rate and redemption provisions), except for covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of issuance, it being understood that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent prior to or at the incurrence of such Incremental Equivalent Debt, together with a reasonably detailed description of the material terms and conditions of such Incremental Equivalent Debt or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions of the Incremental Equivalent Debt satisfy the requirement set forth in this clause (e), shall be conclusive evidence that such terms and conditions have been satisfied, (iii) such Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than a Loan Party, (iv) in the case of Incremental Equivalent Debt that is secured, the obligations in respect thereof shall not be secured by any Lien on any asset the Borrower or any Restricted Subsidiary other than any asset constituting Collateral, (v) if such Incremental Equivalent Debt is secured, such Incremental Equivalent Debt shall be subject to an applicable Intercreditor Agreement, and (vi) the terms of such Incremental Equivalent Debt do not provide for any scheduled amortization or mandatory repayment, mandatory redemption, mandatory offer to purchase or sinking fund obligation prior to the date that is 91 days after the Latest Maturity Date at the time of incurrence, issuance or obtainment of such Incremental Equivalent Debt, other than customary prepayments, repurchases or redemptions of or offers to prepay, redeem or repurchase upon a change of control, asset sale event or casualty or condemnation event, customary prepayments, redemptions or repurchases or offers to prepay, redeem or repurchase based on excess cash flow (in the case of loans) and customary acceleration rights upon an event of default.
(f) This Section 2.14 shall supersede any provisions in Section 3.06 or Section 10.01 to the contrary. The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of “Additional Credit Extension Amendment Amendment” but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.202.14.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Amendment Agreement (Polyone Corp)
Increase in Commitments. (a) The Borrower may by written So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon notice to the Administrative Agent elect Agent, at any time after the Closing Date, the Borrower may request one or more Additional Term Commitments or one or more Additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to seek be implemented; provided that (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments final maturity date of any Class and/or such new tranche of term loans shall be no earlier than the Maturity Date for the Term Loans and (y) commitments the weighted average life to maturity of any such new tranche of term loans shall be no shorter than the remaining weighted average life to maturity of the Term Loans); provided that (“i) after giving effect to any such additional commitments, the aggregate amount of Additional Term Commitments”) Commitments and Additional Revolving Credit Commitments that have been added pursuant to increase this Section 2.14 shall not exceed $275,000,000 (minus the aggregate principal amount of any existing Class Permitted Additional First Lien Debt the proceeds of Term Loans or which are not used solely to establish one or more new Classes of repay Term Loans) unless, after giving effect to any such additional commitments, the Consolidated Senior Secured Leverage Ratio, computed on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered, would be no greater than 3.00 to 1.0; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
(ii) any such increase or any new Class addition shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 500,000 in excess thereof; thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso);
, (iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional for the Term Loans;
, (viiv) the weighted average life to maturity of the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater be no shorter than the then remaining Weighted Average Life weighted average life to Maturity maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional the Term Loans (it being understood thatexcluding the Delayed Term Loan), subject (v) no Lender shall be required to participate in the foregoing requirements of this clause Additional Term Commitments or the Additional Revolving Credit Commitments, (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for rate and amortization schedule applicable to the Additional Term Loans Commitments shall be determined by the Borrower and the Additional Term Lenderslenders thereof; provided that if such Additional Term Commitments are incurred within 18 months of the Closing Date then and only then in the event that the All-In Yield for any interest margins applicable to such Additional Term Loans Commitments is greater than the All-In Yield interest margins for the Initial Term Loans Facility by more than 50 basis points, then the Applicable Rate interest margins for the Initial Term Loans Facility shall be increased to the extent necessary so that the All-In Yield interest margins for such Additional Term Loans is not Commitments are no more than 50 basis points higher greater than the All-In Yield interest margins for the Initial Term Loans;
Facility; provided, further, that in determining the interest margins applicable to the Term Facility and the Additional Term Commitments, (viiix) original issue discount (A“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by Borrower to the security Lenders of the Term Facility or the Additional Term Commitments in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity) and guaranties benefiting (y) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term Facility or to one or more arrangers (or their affiliates) of the Additional Term Commitments shall be excluded and (vii) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will shall rank pari passu in right of payment and of security with the existing Facilities, (B) no Person shall guarantee Revolving Credit Loans and the obligations with respect to the Additional Term Loans and/or Loans. Any Additional Revolving Credit Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive same documentation applicable to the Revolving Commitments Credit Facility (it being understood that customary arrangement or commitment fees payable to one or more arrangers (or their affiliates) of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject Revolving Credit Commitments may be different than those paid with respect to the foregoing clauses (vRevolving Credit Facility), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall specify (x) determine the effective date (each, an the “Additional Commitments Effective Date”) on which the Borrower proposes of such addition. Additional Term Loans may be made, and Additional Revolving Credit Commitments may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Additional Commitments Administrative Agent shall be effective, which shall be a Business Day and have consented (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment such consent not to be provided by each unreasonably withheld) to such PersonLender’s or Additional Lender’s providing such Additional Revolving Credit Commitments if such consent would be required under Section 10.06(b) for an assignment of Revolving Credit Commitments to such Lender or Additional Lender. As a condition precedent to the effectiveness of any Additional Commitmentssuch addition, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments (Effective Date, except to the extent that such representations and assuming full utilization thereof) the requirements warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.20(a)(i2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (iva) and (xb), respectively, of Section 6.01, (ii) are satisfiedno Default or Event of Default exists immediately before or immediately after giving effect to such addition, and setting (iii) the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 7.11 after giving effect to the calculation making of the Incremental Cap.
(c) Additional Term Loans or Additional Revolving Credit Loans, as applicable. On each Additional Commitments Effective Date with respect to Date, each applicable Lender or other Person which is providing an Additional Term Commitment or an Additional Revolving Credit Commitment (i) in the case of any Additional Revolving Credit Commitment, shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its such Lender’s or Person’s Additional Term Commitment. Any Additional Revolving Credit Loan shall be a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents and any Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Loan Documents. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 2.163.05) to the extent necessary to keep the outstanding Revolving Credit Loans pro rata across all Classes of ratable with any revised Applicable Revolving Commitments Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments. If there is a new borrowing .
(c) Any other terms of and documentation entered into in respect of any Additional Term Loans made or any Additional Revolving Credit Commitments on provided, in each case pursuant to this Section 2.14, shall be consistent with the Term Loans or the Revolving Credit Commitments, as the case may be (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.14(a) above; provided that such other terms and documentation in respect of any Additional Term Loans may be materially different from those of the Term Loans, to the extent such difference shall be reasonably satisfactory to the Administrative Agent or be consistent with terms and documentation in respect of comparable Indebtedness of similar companies at the time of such Additional Commitments Effective Date, Term Loans in light of the Revolving Lenders after giving effect to such market. Any Additional Term Loans or Additional Revolving Commitments Credit Commitments, as applicable, made or provided pursuant to this Section 2.14 shall make such Revolving Loans be evidenced by one or more entries in the accounts or records maintained by the Administrative Agent in accordance with the provisions set forth in Section 2.01(b)2.11.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20.
(e) This Section 2.20 2.14 shall supersede any provisions in Section 2.18 2.13 or Section 9.02 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties to provide for terms applicable to each Additional Term Commitment and/or Additional Revolving Credit Commitment, as the case may be.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon notice to the Administrative Agent elect Agent, at any time after the Closing Date, the Borrower may request one or more Additional Term Commitments or one or more Additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to seek be implemented; provided that (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments final maturity date of any Class and/or such new tranche of term loans shall be no earlier than the Maturity Date for the Term Loans and (y) commitments (“Additional Term Commitments”) the weighted average life to increase the aggregate principal amount maturity of any existing Class such new tranche of Term Loans or term loans shall be no shorter than the remaining weighted average life to establish one or more new Classes maturity of the Term Loans); provided that:
that (i) after giving effect to any such addition, the aggregate amount of all Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed the Incremental Cap;
$300,000,000; (ii) any such increase or any new Class addition shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 500,000 in excess thereof; thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso);
, (iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional for the Term Loans;
, (viiv) the weighted average life to maturity of the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater be no shorter than the then remaining Weighted Average Life weighted average life to Maturity maturity of each Class of the Term Loans outstanding prior Loans, (v) no Lender shall be required to such proposed incurrence of participate in the Additional Term Loans (it being understood thatCommitments or the Additional Revolving Credit Commitments, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for rate and amortization schedule applicable to the Additional Term Loans Commitments shall be determined by the Borrower and the Additional Term Lenderslenders thereof; provided that in the event that the All-In Yield for any interest margins applicable to such Additional Term Loans Commitments is greater than the All-In Yield interest margins for the Initial Term Loans Facility by more than 50 basis points, then the Applicable Rate interest margins for the Initial Term Loans Facility shall be increased to the extent necessary so that the All-In Yield interest margins for such Additional Term Loans is not Commitments are no more than 50 basis points higher greater than the All-In Yield interest margins for the Initial Term Loans;
Facility; provided, further, that in determining the interest margins applicable to the Term Facility and the Additional Term Commitments, (viiix) original issue discount (A“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by Borrower to the security Lenders of the Term Facility or the Additional Term Commitments in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity) and guaranties benefiting (y) customary arrangement or commitment fees payable to the Arrangers (or their affiliates) in connection with the Term Facility or to one or more arrangers (or their affiliates) of the Additional Term Commitments shall be excluded and (vii) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will shall rank pari passu in right of payment and of security with the existing Facilities, (B) no Person shall guarantee Revolving Credit Loans and the obligations with respect to the Additional Term Loans and/or Loans. Any Additional Revolving Credit Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive same documentation applicable to the Revolving Commitments Credit Facility (it being understood that customary arrangement or commitment fees payable to one or more arrangers (or their affiliates) of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject Revolving Credit Commitments may be different than those paid with respect to the foregoing clauses (vRevolving Credit Facility), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall specify (x) determine the effective date (each, an the “Additional Commitments Effective Date”) on which the Borrower proposes of such addition. Additional Term Loans may be made, and Additional Revolving Credit Commitments may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Additional Commitments Administrative Agent shall be effective, which shall be a Business Day and have consented (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment such consent not to be provided by each unreasonably withheld) to such PersonLender’s or Additional Lender’s providing such Additional Revolving Credit Commitments if such consent would be required under Section 10.06(b) for an assignment of Revolving Credit Commitments to such Lender or Additional Lender. As a condition precedent to the effectiveness of any Additional Commitmentssuch addition, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments (Effective Date, except to the extent that such representations and assuming full utilization thereof) the requirements warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.20(a)(i2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (iva) and (xb), respectively, of Section 6.01, (ii) are satisfiedno Default or Event of Default exists immediately before or immediately after giving effect to such addition, and setting (iii) the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 7.11 after giving effect to the calculation making of the Incremental Cap.
(c) Additional Term Loans or Additional Revolving Credit Loans, as applicable. On each Additional Commitments Effective Date with respect to Date, each applicable Lender or other Person which is providing an Additional Term Commitment or an Additional Revolving Credit Commitment (i) in the case of any Additional Revolving Credit Commitment, shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its such Lender’s or Person’s Additional Term Commitment. Any Additional Revolving Credit Loan shall be a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents and any Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Loan Documents. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 2.163.05) to the extent necessary to keep the outstanding Revolving Credit Loans pro rata across all Classes of ratable with any revised Applicable Revolving Commitments Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments. If there is a new borrowing .
(c) Any other terms of and documentation entered into in respect of any Additional Term Loans made or any Additional Revolving Credit Commitments on such Additional Commitments Effective Dateprovided, in each case pursuant to this Section 2.14, shall be consistent with the Term Loans or the Revolving Lenders after giving effect Credit Commitments, as the case may be, (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.14(a) above; provided that such other terms and documentation in respect of any Additional Term Loans may be materially different from those of the Term Loans, to the extent such difference shall be reasonably satisfactory to the Administrative Agent. Any Additional Term Loans or Additional Revolving Commitments Credit Commitments, as applicable, made or provided pursuant to this Section 2.14 shall make such Revolving Loans be evidenced by one or more entries in the accounts or records maintained by the Administrative Agent in accordance with the provisions set forth in Section 2.01(b)2.11.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20.
(e) This Section 2.20 2.14 shall supersede any provisions in Section 2.18 2.13 or Section 9.02 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties to provide for terms applicable to each Additional Term Commitment and/or Additional Revolving Credit Commitment, as the case may be.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written notice At any time prior to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase Business Day immediately preceding the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase Maturity Date, the Borrowers may effectuate one or more increases in the aggregate principal amount of any existing Class of Term Loans US Commitments and/or Canadian Commitments or to establish add one or more new Classes term loan facilities hereunder (each such increase or new term loan facility being a “Commitment Increase”), by designating one or more of Term Loansthe existing Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) and/or one or more other Eligible Assignees that at the time agree to increase its or their US Commitments and/or Canadian Commitments and/or provide new US Commitments, Canadian Commitments and/or term loan commitments as such Lender (an “Increasing Lender”) or other Eligible Assignee (an “Additional Lender”) shall so select and, in the case of each such Additional Lender, to become a party to this Agreement as a Lender; provided provided, however, that:
(i) each such Commitment Increase shall be equal to at least $5,000,000;
(ii) the aggregate amount of all Additional Commitments such Commitment Increases shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i)50,000,000;
(iii) no existing Lender the aggregate amount of all such Commitment Increases in the form of one or more term loan facilities shall be required to provide any Additional Commitmentsnot exceed $25,000,000;
(iv) as of each date of borrowing of no Default shall exist immediately prior to and after giving effect to any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test PeriodCommitment Increase;
(v) with respect to any Commitment Increase in the final form of one or more term loan facilities, after giving pro forma effect to any such new additional term loans under a new term 81 loan facility (and any Advances hereunder made on the effective date of such term loan facilities), the Leverage Ratio shall be no greater than 2.00 to 1.00;
(vi) no Lender shall be required or otherwise obligated to provide any Commitment Increase or any portion thereof;
(vii) the scheduled maturity date of any Additional Term Loans new term loan facility shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding and no other scheduled amortization prepayments shall be required thereunder prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater Date other than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject those that apply to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Additional Term Lendersexisting Facilities; provided that in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;and
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless each such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment Increase shall have the same maturity dates and be on terms as the same pricing (excluding upfront fees and existing Facilities other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, than (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, original issue discounts, fees if any, upfront fees, and optional and mandatory prepayment provisions applicable customary arrangement, structuring, or underwriting fees, if any, payable to one or more arrangers (or their affiliates) of any such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) Commitment Increase and (B) operational and structural terms reasonably acceptable to the covenants Borrowers, such Increasing Lenders and other terms the applicable Administrative Agent as may be necessary to implement such Additional Term Loans (excluding those terms described Commitment Increases in the immediately preceding clause (A)), which form of a new term loan facility. The US Borrower shall be as agreed between provide prompt notice of such proposed Commitment Increase pursuant to this Section 2.17 to the Borrower US Administrative Agent and the Additional Term Lenders, . This Section 2.17 shall not be materially more favorable (when taken as a whole) construed to create any obligation on the Additional Term US Administrative Agent or any of the Lenders than those applicable to advance or to commit to advance any credit to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except or to the extent such covenants and arrange for any other terms apply solely Person to advance or to commit to advance any credit to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other LendersBorrower.
(b) Each such notice The Commitment Increase shall specify (x) become effective on the date (each, an the “Additional Commitments Effective Increase Date”) on or prior to which each of following conditions shall have been satisfied: (i) the Borrower proposes that receipt by the US Administrative Agent of (A) an agreement in form and substance reasonably satisfactory to the US Administrative Agent signed by the Borrowers, each Increasing Lender and/or each Additional Commitments shall Lender, setting forth the Commitments, if any, of each such Increasing Lender and/or Additional Lender and, if applicable, setting forth the agreement of each Additional Lender to become a party to this Agreement and to be effectivebound by all the terms and provisions hereof binding upon each Lender, which shall be a Business Day if any of the terms of such Commitment Increase differs from the Canadian Facility or the US Facility, as applicable, (B) an amendment to this Agreement signed by the Borrowers, the Administrative Agents and such Increasing Lenders and Additional Lenders, as applicable, to amend the necessary provisions of this Article 2 to account for the terms of such Commitment Increase, and (yC) such evidence of appropriate authorization on the identity part of the Persons Borrowers with respect to such Commitment Increase and such customary legal opinions as the US Administrative Agent may reasonably request, (ii) in the case of any Commitment Increase in respect of the US Commitments, the funding by each of which shall be an Eligible Assignee (for this purpose treating a Increasing Lender and Additional Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment US Advances to be provided made by each such Person. As a condition precedent Lender to effect the effectiveness reallocations required in clause (c) below, (iii) in the case of any Additional Commitment Increase in respect of the Canadian Commitments, the Borrower shall deliver funding by each Increasing Lender and Additional Lender of the Canadian Advances to be made on the Increase Date, if any, in the amount of such Lender’s increased Canadian Commitment, (iv) receipt by the US Administrative Agent of a certificate dated as of an authorized officer of the Additional Commitments Effective Date signed by a Responsible Officer of the US Borrower certifying that, that (A) both before and after giving effect to such Commitment Increase, no Default has occurred and is continuing, (B) all representations and warranties made by the Additional Commitments Borrowers in this Agreement are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and assuming full utilization warranties that already are qualified or modified by materiality in the text thereof), unless such representation or warranty relates to an earlier date which remains true and correct in all material respects as of such earlier date (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), and (C) the requirements Parent is in pro forma compliance with the covenants in Section 6.16, after giving 82 pro forma effect to the making of Section 2.20(a)(i)any Advances in connection with the relevant increase in the US Commitment or Canadian Commitment, (iv) or any such new additional term loans under a new term loan facility, and (xv) are satisfiedreceipt by the Increasing Lender or Additional Lender, as applicable, of all such fees as agreed to between such Increasing Lender and setting forth /or Additional Lender and the calculation of the Incremental Capapplicable Borrower.
(c) On each Additional any Increased Date on which there is a Commitment Increase in the Canadian Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.162.17, (i) each of the Canadian Facility Lenders shall assign to each of the extent necessary Increasing Lenders with regard to keep such Commitment Increase, and each of such Increasing Lender shall purchase from each of the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase Canadian Facility Lenders, at the principal amount thereof, such interests in the Revolving Commitments. If there is a new borrowing of Revolving Commitments Canadian Advances outstanding on such Additional Commitments Effective DateIncreased Date as shall be necessary in order that, the Revolving Lenders after giving effect to all such Additional Revolving Commitments shall make assignments and purchases, such Revolving Loans Canadian Advances will be held by existing Canadian Facility Lenders and the Increasing Lenders ratably in accordance with their Canadian Commitments after giving effect to the addition of such Commitment Increase in the Canadian Commitments, (ii) each Commitment Increase in the Canadian Commitments shall be deemed for all purposes a Canadian Commitment and each Canadian Advance made thereunder shall be deemed, for all purposes, a Canadian Advance and (iii) each Increasing Lender shall become a Canadian Facility Lender with respect to the Commitment Increase and all matters relating thereto. The Canadian Administrative Agent and the Canadian Facility Lenders hereby agree that the minimum borrowing and prepayment requirements in Section 2.01(b)2.4 of this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. Notwithstanding any provision contained herein to the contrary, from and after the date of such Commitment Increase, all calculations and payments of interest on the Canadian Advances shall take into account the actual Canadian Commitment of each Canadian Facility Lender and the principal amount outstanding of each Canadian Advance made by such Lender during the relevant period of time.
(d) The Additional On any Increase Date on which there is a Commitment Increase in the US Commitments pursuant to Section 2.17, (i) each of the US Facility Lenders shall assign to each of the Increasing Lenders with regard to such Commitment Increase, and each of such Increasing Lender shall purchase from each of the US Facility Lenders, at the principal amount thereof, such interests in the US Advances outstanding on such Increased Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such US Advances will be held by existing US Facility Lenders and the Increasing Lenders ratably in accordance with their US Commitments after giving effect to the addition of such Commitment Increase in the US Commitments, (ii) each Commitment Increase in the US Commitments shall be documented by an Additional Credit Extension Amendment executed by deemed for all purposes a US Commitment and each US Advance made thereunder shall be deemed, for all purposes, a US Advance and (iii) each Increasing Lender shall become a US Facility Lender with respect to the Persons providing the Additional Commitments (Commitment Increase and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the all matters relating thereto. The US Administrative Agent and the Borrower, to effect US Facility Lenders hereby agree that the provisions minimum borrowing and prepayment requirements in Section 2.4 of this Section 2.20Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. Notwithstanding any provision contained herein to the contrary, from and after the date of such Commitment Increase, all calculations and payments of interest on the US Advances shall take into account the actual US Commitment of each US Facility Lender and the principal amount outstanding of each US Advance made by such Lender during the relevant period of time.
(e) This Section 2.20 On such Increase Date if such Commitment Increase involves an increase in the aggregate US Commitments, each US Facility Lender’s share of the Letter of Credit Exposure and participations in respect of Swing Line Advances on such date shall supersede automatically be deemed to equal such Lender’s US Pro Rata Share of such Letter of Credit Obligations and participations in respect of Swing Line Advances (such US Pro Rata Share for such Lender to be determined as of the Increase Date in accordance with its US Commitment on such date as a percentage of the aggregate US Commitments on such date) without further action by any provisions in Section 2.18 or Section 9.02 to the contrary.party. 83
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Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek add one or more incremental term loan facilities hereunder (each, an “Incremental Term Facility”; the commitments thereunder are referred to as “Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”; the Incremental Term Facilities are collectively referred to as “Incremental Facilities”); provided that the total aggregate amount for all such Incremental Facilities shall not (as of any date of incurrence thereof) exceed (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments of any Class and/or $160,000,000250,000,000, plus (y) commitments (“Additional Term Commitments”) an amount equal to increase the aggregate principal amount sum of any existing Class all voluntary prepayments of Term Loans or made pursuant to establish one or more new Classes Section 2.08(a), plus (z) an additional unlimited amount so long as, after giving effect to the incurrence of Term Loans; provided that:
(i) such Incremental Facility, the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving CommitmentsSecured Leverage Ratio, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance determined on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the most recently ended Test Period;
Period for which financial statements were required to have been delivered pursuant to Section 6.01 (v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders; provided that in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by no Test Period has passed, as of the Additional Term Lenderslast four quarters ended), in each case, as if such Incremental Facility had been outstanding on a less than pro rata basis the last day of such four-quarter period, shall not exceed 2.502.75:1.00, with the Borrower electing whether such Incremental Facility have been incurred (but in no event on a greater than pro rata basis); and
whole or in part) under clauses (x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), y) and/or (viiz) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which its sole discretion. Each Class of Incremental Facility incurred under this Section 2.13 shall be as agreed between the Borrower and the Additional Term Lenders, shall in an aggregate principal amount that is not be materially more favorable (when taken as a whole) to the Additional Term Lenders less than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) $10,000,000. Each such notice shall specify (x) the date (each, an “Additional Commitments Increase Effective Date”) on which the Borrower proposes that the Additional Commitments Incremental Facility shall be effective, which shall be a date not less than five (5) Business Day Days after the date on which such notice is delivered to the Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) to whom the Borrower proposes would provide the Additional Commitments any portion of such Incremental Facility be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Additional Commitment Incremental Facility may elect or decline, in its sole discretion, to be provided by each provide such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation portion of the Incremental CapFacility.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek add one or more incremental term loan facilities hereunder (each, an “Incremental Term Facility”; the commitments thereunder are referred to as “Incremental Term Loan Commitments” and loans pursuant thereto “Incremental Term Loans”; the Incremental Term Facilities are collectively referred to as “Incremental Facilities”); provided that the total aggregate amount for all such Incremental Facilities shall not (as of any date of incurrence thereof) exceed (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments of any Class and/or $160,000,000, plus (y) commitments (“Additional Term Commitments”) an amount equal to increase the aggregate principal amount sum of any existing Class all voluntary prepayments of Term Loans or made pursuant to establish one or more new Classes Section 2.08(a), plus (z) an additional unlimited amount so long as, after giving effect to the incurrence of Term Loans; provided that:
(i) such Incremental Facility, the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving CommitmentsSecured Leverage Ratio, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance determined on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the most recently ended Test Period;
Period for which financial statements were required to have been delivered pursuant to Section 6.01 (v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders; provided that in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by no Test Period has passed, as of the Additional Term Lenderslast four quarters ended), in each case, as if such Incremental Facility had been outstanding on a less than pro rata basis the last day of such four-quarter period, shall not exceed 2.50:1.00, with the Borrower electing whether such Incremental Facility have been incurred (but in no event on a greater than pro rata basis); and
whole or in part) under clauses (x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), y) and/or (viiz) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which its sole discretion. Each Class of Incremental Facility incurred under this Section 2.13 shall be as agreed between the Borrower and the Additional Term Lenders, shall in an aggregate principal amount that is not be materially more favorable (when taken as a whole) to the Additional Term Lenders less than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) $10,000,000. Each such notice shall specify (x) the date (each, an “Additional Commitments Increase Effective Date”) on which the Borrower proposes that the Additional Commitments Incremental Facility shall be effective, which shall be a date not less than five (5) Business Day Days after the date on which such notice is delivered to the Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) to whom the Borrower proposes would provide the Additional Commitments any portion of such Incremental Facility be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Additional Commitment Incremental Facility may elect or decline, in its sole discretion, to be provided by each provide such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation portion of the Incremental CapFacility.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Increase in Commitments. At any time prior to the third anniversary of the Closing Date, Agent may, at the request of Borrower, increase, from time to time, but not more than four (4) times in the aggregate, the total Revolving Commitments or the total Term Commitments, or both, by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”), and/or (ii) increasing the Revolving Commitment of any Revolving Lender and/or the Term Commitment of any Term Lender, as the case may be (each an “Increasing Lender”), subject to the following conditions:
(a) The each Subsequent Lender shall meet the conditions for assignee under §18.1;
(b) if requested by the applicable Lender, Borrower may by written notice executes new Revolving Loan Notes or Term Loan Notes, or both, as applicable, payable to the Administrative order of each Subsequent Lender, or a new or replacement Revolving Loan Note or Term Loan Note (or both, as applicable) payable to the order of each Increasing Lender;
(c) each Subsequent Lender executes and delivers to Agent elect a signature page to seek 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 Revolving Commitment and/or Term Commitment;
(xd) commitments (“Additional Revolving Commitments”) Borrower and Agent shall have executed modifications of the Security Documents and other Loan Documents to reflect the increase in the Revolving Commitments or the Term Commitments (or both, as applicable) 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 any Class and/or (y) commitments (“Additional Term Commitments”) to such modifications of the Security Documents or increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
in (i) the aggregate Revolving Loan amount of all Additional Commitments shall not exceed or Revolving Commitment (whichever is the Incremental Capbasis for computing such tax), or (ii) the Term Loan amount or Term Commitment (whichever is the basis for computing such tax), or (iii) both (i) and (ii), if applicable;
(iie) any such increase or any new Class the allocation of the increased Commitments by Borrower as between the Revolving Commitments and the Term Commitments shall be in an aggregate amount of $10,000,000 subject to Agent’s consent (not to be unreasonably withheld or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (idelayed);
(iiif) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders; provided that in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) admission of any Subsequent Lender or the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving CommitmentsCommitment or the Term Commitment (or both, as the case may be) of any Increasing Lender, the sum of all Revolving Commitments and all Term Commitments and (without duplication) Outstanding Term Loans does not exceed $500,000,000;
(g) each increase in the Revolving Commitments or the Term Commitments (as applicable) shall be in the amount of at least $10,000,000, or a greater integral multiple of $5,000,000;
(h) no increase in the Revolving Commitments or the Term Commitments (or both, as applicable) of any existing Lender shall be effective without the written consent of such Lender;
(i) all of the representations and warranties of Borrower 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);
(j) no Default or Event of Default exists or would result therefrom;
(k) no Lender, including, but not limited to KeyBank, shall be an Increasing Lender without the written consent of such Lender; and
(l) 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 Loan fees and placement fees, if any, as may be agreed for such increase in the Revolving Commitments or the Term Commitments (or both, as applicable). If there is After adding the Revolving Commitment or the Term Commitment (or both, as applicable) of any Increasing Lender or Subsequent Lender, Agent shall promptly provide each Lender and Borrower with a new borrowing Schedule 1.1 to this Agreement (and each Lender acknowledges that its Commitment Percentage under Schedule 1.1 and allocated portion of the Outstanding Revolving Commitments Loans, Swing Line Loans and Letters of Credit on such Additional Commitments Effective Datethe one hand, or the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Outstanding Term Loans on the other (or both, as applicable), will change in accordance with Section 2.01(b).
(d) The Additional its pro rata share of the increased Revolving Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional or Term Commitments (or both, as applicable). Unless and until the other Persons specified total Revolving Commitments and/or Term Commitments have been increased in accordance with this §2.9, Borrower shall not be permitted any disbursement beyond the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion amount of the Administrative Agent and the Borrower, Commitments in effect immediately prior to effect the provisions of this Section 2.20such proposed increase.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Revolving and Term Credit Agreement (Forestar Group Inc.)
Increase in Commitments. (a) The Borrower may by written So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase Agent, at any time after the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase Closing Date, the aggregate principal amount of any existing Class of Term Loans or to establish Borrower may request one or more new Classes of Additional Term Loans; provided that:
Commitments or one or more Additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments in respect of any term loans may be implemented through the addition of additional new tranches of such loans instead of being implemented as increases in the applicable Commitments and (ii) if the Borrower makes such election, the provisions of this Section shall be read in a manner that permits such election to be implemented); provided that (i) after giving effect to any such addition, the aggregate amount of all Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed the Incremental Cap;
$300,000,000, (ii) any such increase or any new Class addition shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 500,000 in excess thereof; thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso);
, (iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
Date, (viiv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi“Outstanding Term Loans”), (v) the amortization requirements Applicable Rate with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the lenders of the Additional Term LendersLoans; provided that in the event that the All-In Yield Applicable Rate for any Additional Term Loans is greater than the All-In Yield Applicable Rate for the Initial Outstanding Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Outstanding Term Loans shall be increased to the extent necessary so that the All-In Yield Applicable Rate for such the Additional Term Loans is not more than 50 basis points higher than the All-In Yield Applicable Rate for the Initial Outstanding Term Loans;
, and the Applicable Rate for the Revolving Credit Facility (viiiincluding at each point in the grid) (A) shall be increased by a like amount; provided, further, that, in determining the security interest and guaranties benefiting the Applicable Rate with respect to Additional Term Loans and/or Additional Revolving Commitments or Outstanding Term Loans pursuant to this clause (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilitiesv), (Bx) no Person original issue discount (“OID”) or upfront or similar fees (which shall guarantee be deemed to constitute like amounts of OID) payable by the obligations with respect Borrower to the lenders providing such Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless or such Person is a Subsidiary Loan Party and (C) the Additional Outstanding Term Loans and/or Additional Revolving Commitments in the primary syndication thereof (and advances of credit thereunderwith OID being equated to interest based on an assumed four-year life to maturity) will not shall be secured by included, (y) customary arrangement or commitment fees payable to any property that does not constitute Collateral under lead arranger (or its affiliates) in connection with the existing Facilities;
(ix) any Additional Outstanding Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with or the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between excluded, and (z) if the Borrower and lowest permissible Eurodollar Rate is greater than 1.5% or the lowest permissible Base Rate is greater than 2.5% for such Additional Term Lenders but subject Loans, the difference between such “floor” and 1.5%, in the case of Eurodollar Loans, or 2.5%, in the case of Base Rate Loans, shall be equated to an increase in the foregoing clauses Applicable Rate for purposes of this clause (v), (vi)) no Lender shall be required to participate in the Additional Term Commitments or the Additional Revolving Credit Commitments, (vii) and subject to clause (ix) and (B) iv), the covenants and other terms amortization schedule applicable to such the Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which Commitments shall be as agreed between determined by the Borrower and the Additional Term Lenders, shall not be materially more favorable lenders thereof and (when taken as a wholeviii) to the Additional Term Lenders than those applicable to any Class Loans shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans then outstanding under Loans, in each case in this Agreement clause (as determined by the Borrower in good faith), except viii) on terms reasonably satisfactory to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other LendersAdministrative Agent.
(b) Each such notice If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall specify (x) determine the effective date (each, an the “Additional Commitments Effective Date”) of such addition. Additional Term Loans may be made, and Additional Revolving Credit Commitments may be provided, by any existing Lender (and each existing Term Lender will have the right, but not an obligation, to make a portion of any Additional Term Loans and each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Revolving Credit Commitments, in each case on which terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Borrower proposes Administrative Agent) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Additional Commitments Administrative Agent shall be effective, which shall be a Business Day and have consented (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment such consent not to be provided by each unreasonably withheld) to such PersonLender’s or Additional Lender’s providing such Additional Revolving Credit Commitments if such consent would be required under Section 10.06(b) for an assignment of Revolving Credit Commitments to such Lender or Additional Lender. As a condition precedent to the effectiveness of any Additional Commitmentssuch addition, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments (Effective Date, except to the extent that such representations and assuming full utilization thereof) the requirements warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.20(a)(i2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (iva) and (xb), respectively, of Section 6.01, (ii) are satisfiedno Default or Event of Default exists immediately before or immediately after giving effect to such addition, and setting (iii) the Borrower shall be in compliance, on a Pro Forma Basis, with the financial covenants set forth in Section 7.11 after giving effect to the calculation making of the Incremental Cap.
(c) Additional Term Loans or Additional Revolving Credit Loans, as applicable. On each Additional Commitments Effective Date with respect to Date, each applicable Lender or other Person which is providing an Additional Term Commitment or an Additional Revolving Credit Commitment (i) in the case of any Additional Revolving Credit Commitment, shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its such Lender’s or Person’s Additional Term Commitment. Any Additional Revolving Credit Loan shall be a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents. Any Additional Term Loan shall be a “Term Loan” for all purposes of this Agreement and the other Loan Documents. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 2.163.05) to the extent necessary to keep the outstanding Revolving Credit Loans pro rata across all Classes of ratable with any revised Applicable Revolving Commitments Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments. If there is a new borrowing of Revolving Credit Commitments on such Additional Commitments Effective Date, the Revolving Credit Lenders after giving effect to such Additional Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(b).
(dc) The Any other terms of and documentation entered into in respect of any Additional Term Loans made or any Additional Revolving Credit Commitments provided, in each case pursuant to this Section 2.14, shall be documented consistent with the Term Loans or the Revolving Credit Commitments, as the case may be, (including with respect to voluntary and mandatory prepayments), other than as contemplated by an Section 2.14(a)(iii), (iv), (v), (vii) or (viii) above; provided that such other terms and documentation in respect of any Additional Term Loans may be materially different from those of the Term Loans, as the case may be, to the extent such difference shall be reasonably satisfactory to the Administrative Agent. Any Additional Term Loans or Additional Revolving Credit Extension Amendment executed Commitments, as applicable, made or provided pursuant to this Section 2.14 shall be evidenced by the Persons providing the Additional Commitments (and the other Persons specified one or more entries in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary accounts or appropriate, in the reasonable opinion of records maintained by the Administrative Agent and the Borrower, to effect in accordance with the provisions of this set forth in Section 2.202.11.
(ed) This Section 2.20 2.14 shall supersede any provisions in Section 2.18 2.13 or Section 9.02 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties to provide for terms applicable to each Additional Term Commitment and/or Additional Revolving Credit Commitment, as the case may be.
Appears in 1 contract
Sources: Credit Agreement (MSCI Inc.)
Increase in Commitments. The Company shall have the right, so long as no Default shall have occurred and be continuing, without the consent of any Bank (except as described in clause (i) below) but with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), at any time prior to August 5, 2002, to increase the total aggregate amount of the Commitments hereunder by (a) The Borrower may by written notice adding a lender or lenders hereto with a Commitment or Commitments up to the Administrative Agent elect to seek amount (xor aggregate amount) commitments of any such increase (“Additional Revolving Commitments”which lender or lenders shall thereupon become "Banks" hereunder) and/or (b) enabling any Bank or Banks to increase its (or their) Commitment (or Commitments) up to the Revolving Commitments amount of any Class and/or such increase; PROVIDED, HOWEVER, that (yi) commitments in no event shall any Bank's Commitment be increased without the consent of such Bank, (“Additional Term Commitments”ii) if any Committed Loans are outstanding hereunder on the date that any such increase is to increase become effective, the aggregate principal amount of all such Committed Loans shall on or prior to the effectiveness of such increase, at the option of the Company, either (A) be repaid, together with accrued interest thereon and any existing Class costs incurred by any Bank in accordance with Section 5.05 (but all such Loans may, on the terms and conditions hereof, be reborrowed on the date that any such increase becomes effective pro rata among all of Term the Banks) or (B) be converted into Competitive Loans or to establish with the same terms (including, without limitation, interest rate) and maturity of such Committed Loans, provided that the Competitive Loans into which such Committed Loans are converted shall constitute a utilization of the Commitments, (iii) any such increase shall be in an integral multiple of $50,000,000, (iv) in no event shall any such increase result in the total aggregate amount of the Commitments exceeding $1,500,000,000 and (v) no increase in Commitments contemplated by this Section 2.12 shall result in any one or Bank hereunder having a Commitment in an amount which equals more new Classes than 20% of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders; provided that in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitmenthereunder. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (Company and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerBanks agree to use their best efforts to effectuate any such increase, to effect the provisions of this Section 2.20.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 subject to the contraryterms and conditions set forth herein (including, without limitation, by execution and delivery of any appropriate documentation).
Appears in 1 contract
Sources: Credit Agreement (Newell Co)
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Loans (“Additional Term Loans”); provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the following conditions required to be set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test PeriodCredit Extension Amendment shall have been satisfied;
(v) other than with respect to Customary Term A Loans, any bridge or similar loan or facility or revolving credit facilities, the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of the Term Loans outstanding prior to such proposed incurrence of Additional Term B-89 Loans;
(vi) other than with respect to Customary Term A Loans, any bridge or similar loan or facility or revolving credit facilities, the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of the Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ)B-89 Loans;
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Lenders of such Additional Term LendersLoans; provided that in the event that the All-In Weighted Average Yield for any floating rate, Dollar-denominated syndicated Additional Term Loans (other than with respect to Customary Term A Loans or revolving credit facilities) incurred within twenty-four (24) months after the Amendment No. 8 Effective Date (other than (x) any Additional Term Loans established for the primary purposes of financing a Permitted Acquisition or other Investment and (y) Additional Term Loans in an aggregate amount not to exceed the greater of (i) $725.0 million and (ii) an amount equal to 100% of Consolidated Cash Flow Available for Fixed Charges for the Four Quarter Period) is greater than the All-In Weighted Average Yield for the Initial Term B-89 Loans by more than 50 basis points, then the Applicable Rate for the Initial Term B-89 Loans shall be increased to the extent necessary so that the All-In Weighted Average Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Weighted Average Yield for the Initial Term B-89 Loans;
(viii) all other terms of the Additional Term Loans (Aother than as set forth in clauses (iv) through (vii) above), if more restrictive, taken as a whole, than the terms applicable to the Term B-89 Loans (as determined by the Borrower in its reasonable business judgment), such other terms shall be reasonably acceptable to the Borrower and the Administrative Agent (it being understood and agreed that any Customary Term A Loans and revolving credit facilities may have one or more financial compliance covenants and such covenant shall not be determined to be more restrictive);
(ix) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;facilities provided for herein; and
(ixx) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term B-89 Loans (other than any mandatory prepayment resulting from the incurrence of Refinancing Term Loans or Refinancing Equivalent Debt that is incurred to refinance a specific Class of Loans) or, if agreed to by the lenders of Additional Term LendersLoans, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Loans (“Additional Term Loans”); provided that:
: (i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
; (ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
; (iii) no existing Lender shall be required to provide any Additional Commitments;
; (iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the following conditions required to be set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
Credit Extension Amendment shall have been satisfied; (v) other than with respect to Customary Term A Loans, any bridge or similar loan or facility or revolving credit facilities, the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of the Term Loans outstanding prior to such proposed incurrence of Additional Term B-78 Loans;
; (vi) other than with respect to Customary Term A Loans, any bridge or similar loan or facility or revolving credit facilities, the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of the Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
B-78 Loans; (vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Lenders of such Additional Term LendersLoans; provided that in the event that the All-In Weighted Average Yield for any floating rate, Dollar-denominated syndicated Additional Term Loans (other than with respect to Customary Term A Loans or revolving credit facilities) incurred within twenty-four (24) months after the Amendment No. 8 Effective Date (other than (x) any Additional Term Loans established for the primary purposes of financing a Permitted Acquisition or other Investment and (y) Additional Term Loans in an aggregate amount not to exceed the -72- greater of (i) $725.0 million and (ii) an amount equal to 100% of Consolidated Cash Flow Available for Fixed Charges for the Four Quarter Period) is greater than the All-In Weighted Average Yield for the Initial Term B-78 Loans by more than 50 basis points, then the Applicable Rate for the Initial Term B-78 Loans shall be increased to the extent necessary so that the All-In Weighted Average Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Weighted Average Yield for the Initial Term B-78 Loans;
; (viii) all other terms of the Additional Term Loans (Aother than as set forth in clauses (iv) through (vii) above), if more restrictive, taken as a whole, than the terms applicable to the Term B-78 Loans (as determined by the Borrower in its reasonable business judgment), such other terms shall be reasonably acceptable to the Borrower and the Administrative Agent (it being understood and agreed that any Customary Term A Loans and revolving credit facilities may have one or more financial compliance covenants and such covenant shall not be determined to be more restrictive); (ix) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party facilities provided for herein; and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ixx) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term B-78 Loans (other than any mandatory prepayment resulting from the incurrence of Refinancing Term Loans or Refinancing Equivalent Debt that is incurred to refinance a specific Class of Loans) or, if agreed to by the lenders of Additional Term LendersLoans, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day date reasonably acceptable to Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible an Authorized Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (ivthe condition set forth in Section 2.14(a)(iv) and (x) are is satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Person with an Additional Term Lender Commitment shall make an Additional Term Loan to the Borrower in a principal amount equal to its such Person’s Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may issue one or more series of Incremental Equivalent Debt in an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender)aggregate principal amount not to exceed, and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent date of and after giving effect to the Borrowerissuance of any such Incremental Equivalent Debt, to effect the provisions of this Section 2.20Incremental Cap.
(e) The issuance of any Incremental Equivalent Debt pursuant to this Section 2.14, shall (i) in all cases, be subject to the terms and conditions applicable to Additional Commitments set forth under Sections 2.14(a)(i), (a)(ii), (a)(iii), (a)(v), (a)(vi), (a)(vii) (if such Incremental Equivalent Debt is in the form of term “B” loans secured on a pari passu basis with the Term B- 78 Loans) and (a)(viii), as if set forth in this Section 2.14(e), mutatis mutandis (and, for the
(f) This Section 2.20 2.14 shall supersede any provisions in Section 2.18 3.06 or Section 9.02 to the contrary.10.01
Appears in 1 contract
Sources: Amendment Agreement (Avient Corp)
Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent elect (which shall promptly notify the Lenders), at any time after the Effective Date, the Borrower may request on one or more occasions, additional Term Commitments and/or additional Revolving Credit Commitments; provided that (A) after giving effect to seek any such additional Indebtedness, the Borrower would be in compliance (x) commitments (the “Additional Revolving CommitmentsCommitments Compliance Condition”) with the covenant set forth in Section 7.09(b) and the Leverage Ratio calculated on a Pro Forma Basis would be no greater than 2.00:1.00 as of the most recently completed period of four consecutive fiscal quarters ending prior to increase the Revolving Commitments incurrence of any Class and/or (ysuch Indebtedness, such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) commitments (“Additional Term Commitments”or Section 6.01(b) to increase the as if Loans had been made in an aggregate principal amount equal to the full amount of such additional Commitments of the first day of the fiscal period covered thereby and (B) after giving effect to any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) such addition, the aggregate amount of all Additional additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.14) shall not exceed the Incremental Cap;
(ii$250,000,000. Any such addition under this Section 2.14(a) any such increase or any new Class shall be in an aggregate amount of $10,000,000 50,000,000 or any whole multiple of $1,000,000 5,000,000 in excess thereof; provided that .
(b) Any loans made in respect of any such amount additional Term Commitments (the “Additional Term Loans”) may be less than $10,000,000 if such amount represents all remaining availability under made, at the limit set forth in option of the preceding clause Borrower, either by (i);
) increasing the Term B Loans with the same terms (iii) no existing Lender shall be required to provide any Additional Commitments;
(ivincluding pricing) as the existing Term B Loans, or (ii) creating a new tranche of each date of borrowing of any term loans (an “Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Loan Tranche”). Any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating Loan Tranche shall not mature prior to the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest stated Maturity Date applicable to each Class the latest maturing Tranche of Term Loans outstanding prior to such proposed on the date of incurrence of such Additional Term Loans;
(vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining . The Weighted Average Life to Maturity of each Class any Additional Term Loan Tranche shall be no less than the Weighted Average Life to Maturity of such latest maturing Tranche of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect Loans. The applicable yield relating to any Additional Term Loan Tranche shall not be greater than the Applicable Margin for the existing Term B Loans may differplus 0.50% per annum unless the Applicable Margin for the existing Term B Loans are increased so that the yield applicable to the applicable Additional Term Loan Tranche does not exceed the Applicable Margin for the existing Term B Loans by more than 0.50% per annum; provided that in determining the yield applicable to the existing Term B Loans and the Additional Term Loans, (A) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the existing Term B Loans or the Additional Term Loans in the syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if less, the remaining life to maturity of the Additional Term Loans);
, (viiB) customary arrangement or commitment fees payable to the interest margins for joint bookrunners (or their affiliates) or to one or more arrangers (or their affiliates) of the Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders; provided that in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party excluded and (C) if the Additional Term Loans and/or Loan Tranche includes a “LIBOR floor”, such amount shall be converted into an interest margin (in an amount reasonably determined by the Administrative Agent) for purposes of determining any increase to the applicable yield.
(c) Any such additional Revolving Credit Commitments (the “Additional Revolving Credit Commitments”) shall be made by increasing the Revolving Credit Commitments with the same terms (and advances of credit thereunderincluding pricing) will not be secured by any property that does not constitute Collateral under as the existing Facilities;Revolving Credit Commitments.
(ixd) any Additional To achieve the full amount of a requested increase, the Borrower (i) shall request additional Term Loans shall share on Commitments and/or Revolving Commitments from the Lenders and (ii) may, at its option, at the same time or thereafter, invite additional Eligible Assignees to become Term Lenders or Revolving Credit Lenders, as applicable, in each case, pursuant to a pro rata basis commitment increase and joinder agreement in any voluntary form and mandatory prepayments substance reasonably satisfactory to the Administrative Agent and its counsel. At the time of the sending of notice requesting additional Term Commitments and/or additional Revolving Credit Commitments, the Borrower (in consultation with the Initial Term Loans or, if agreed Administrative Agent) shall specify the time period within which each Lender is requested to by the Additional Term Lenders, on a less than pro rata basis respond (but which shall in no event on a be less than ten Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to provide an additional Term Commitment or Revolving Credit Commitment, as applicable, and, if so, whether by an amount equal to, greater than, or less than pro rata basis); and
its Pro Rata Share of such requested increase (x) any Additional Revolving Commitment which shall have the same maturity dates and be calculated on the same pricing (excluding upfront fees and other fees basis of the type excluded from amount of the determination of “All-In Yield”) funded and other terms and pursuant to unfunded exposure under all the definitive documentation applicable to the Revolving Commitments of Facilities held by each Lender). Any Lender not responding within such Class that is being increased, and any Additional Term Loans and Additional Term Commitments time period shall be on terms deemed to be determinedhave declined to provide an additional Term Commitment or Revolving Credit Commitment, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans as applicable. The Administrative Agent shall be as agreed between notify the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit each Lender of the other Lenders’ responses to each request made hereunder.
(be) Each such notice If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall specify (x) determine the effective date (each, an the “Additional Commitments Effective Date”) on which and the final allocation of such addition. The Administrative Agent shall promptly notify the Borrower proposes that and the Lenders of the final allocation of such addition and the Additional Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such PersonEffective Date. As a condition precedent precedents to the effectiveness of any Additional Commitmentssuch addition, (i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article 5 and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments (Effective Date, except to the extent that such representations and assuming full utilization thereof) the requirements warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.20(a)(i2.14(e), (ivthe representations and warranties contained in Section 5.05(a) and (xb) are satisfiedshall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (B) no Default exists before or after giving effect to such addition and setting forth (C) compliance with the calculation Additional Commitments Compliance Condition and (ii) all fees and expenses owing in respect of such increase to the Incremental CapAdministrative Agent and the Lenders shall have been paid.
(cf) On each Additional Commitments Effective Date with respect to any Additional Date, (i) each Lender or Eligible Assignee which is providing an additional Term CommitmentCommitment (A) shall become a “Term Lender” for all purposes of this Agreement and the other Loan Documents, each Additional Term Lender and (B) shall make an Additional Term Loan to the Borrower in a principal amount equal to its such additional Term Commitment, and such Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments Loan shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition a “Term Loan” for all purposes of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as (except that the interest rate, amortization payment amounts and maturity date applicable to any Additional Term Loan under an Additional Term Loan Tranche may be necessary as agreed by the Borrower and the applicable Lenders providing the additional Term Commitments; provided that such amortization payment amounts and maturity date shall be in accordance with the requirements of Section 2.14(b)) and (ii) each Lender or appropriate, Eligible Assignee which is providing an additional Revolving Credit Commitment shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents with a Revolving Credit Commitment that is increased by (in the reasonable opinion case of an existing Revolving Credit Lender) or equal to (in the Administrative Agent and the Borrower, to effect the provisions case of this Section 2.20a new Revolving Credit Lender) such additional Revolving Credit Commitment.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Lender Processing Services, Inc.)
Increase in Commitments. The Company shall have the right, so long as no Default shall have occurred and be continuing, without the consent of any Lender (except as described in clause (i) below) but with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), at any time prior to the Maturity Date, to increase the total aggregate amount of the Commitments hereunder by (a) The Borrower may by written notice adding a lender or lenders hereto with a Commitment or Commitments of up to the Administrative Agent elect to seek amount (xor aggregate amount) commitments of such increase (“Additional Revolving Commitments”which lender or lenders shall thereupon become "Lenders" hereunder) and/or (b) enabling any Lender or Lenders to increase its (or their) Commitment (or Commitments) up to the Revolving Commitments amount of any Class and/or such increase; provided that: (yi) commitments in no event shall any Lender's Commitment be increased without the consent of such Lender, (“Additional Term Commitments”ii) if any Revolving Loans are outstanding hereunder on the date that any such increase is to increase be effective, the aggregate principal amount of any existing Class such Revolving Loans shall on or prior to the effectiveness of Term such increase, at the option of the Borrowers, either (A) be repaid, together with accrued interest thereon and any costs incurred by any Lender in accordance with Section 2.14 (but all such Loans may, on the terms and conditions hereof, be reborrowed on the date that any such increase becomes effective pro rata among all of the Lenders) or to establish (B) be converted into Competitive Loans with the same terms (including, without limitation, interest rate) and maturity of such Revolving Loans, provided that the Competitive Loans into which such Revolving Loans are converted shall constitute a utilization of the Commitments, (iii) any such increase shall be in an integral multiple of $50,000,000, (iv) in no event shall any increase result in the total aggregate amount of the Commitments exceeding $1,250,000,000, (v) no increase in Commitments contemplated by this Section 2.18 shall result in any one or Lender having a Commitment in an amount which equals more new Classes than 20% of Term Loans; provided that:
(i) the aggregate amount of all Additional the Commitments shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitmentshereunder, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans no increase in Commitments shall have occur within 12 months of a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders; provided that reduction in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b)2.07.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Metlife Inc)
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the sum of (A)(x) $75,000,000 less (y) the aggregate principal amount of First Lien Indebtedness incurred under Section 7.02(b)(ii) less (z) the aggregate principal amount of Incremental CapNotes incurred under Section 7.02(v)(A) (the amount in this clause (A), the “Incremental Dollar Basket”), plus (B) all voluntary prepayments of Term Loans prior to or simultaneous with the Additional Commitments Effective Date (excluding voluntary prepayments of Additional Term Loans, to the extent such Additional Term Loans were obtained pursuant to clause (C) below), plus (C) after utilization of the amounts available pursuant to clauses (A) and (B) above, additional amounts so long as the Consolidated Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Additional Term Loans available under such Additional Commitments had been outstanding on the last day of such period, and, in each case excluding the cash proceeds of any Term Loans pursuant to such Additional Commitments, do not exceed 6.50:1.00 (this clause (C), the “Incremental Ratio Exception”);
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term LoansDate;
(viiv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause “Outstanding Term Loans”);
(vi), v) the amortization requirements Applicable Rate with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the lenders of the Additional Term LendersLoans; provided that with respect to any Additional Term Loans incurred prior to the second anniversary of the Initial Funding Date, (x) in the event that the All-In Yield Applicable Rate for any such Additional Term Loans is greater than the All-In Yield Applicable Rate for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield Applicable Rate for such the Additional Term Loans is not more than 50 basis points higher than the All-In Yield Applicable Rate for the Initial Term Loans; provided, further, that, in determining the Applicable Rate with respect to Additional Term Loans or the applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included and (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (y) if any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to the Outstanding Term Loans, the Eurodollar Rate “floor” or Base Rate applicable to the Initial Term Loans shall be increased so that the applicable “floor” is the same;
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Commitments shall be determined by the Borrower and the lenders thereof;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will shall rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments ; and
(and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (Cix) the Additional Term Loans and/or Additional Revolving Commitments may have optional prepayment terms (including call protection and advances prepayment premiums) and mandatory prepayment terms as may be agreed between the Borrower and the lenders of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial so long as such Additional Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event do not participate on a greater than pro rata basis); and
(x) basis in any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant such mandatory prepayments as compared to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Initial Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other LendersLoans.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each of which shall be a Person that would be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (ivi) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.16(b), the representations and warranties contained in Section 5.05(a) shall be deemed to refer to the most recent financial statements furnished pursuant to subsection (a) of Section 6.01 and (xii) are satisfied, and setting forth the calculation no Default or Event of the Incremental Cap.
(c) Default exists. On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Person with an Additional Term Lender Commitment shall make an Additional Term Loan to the Borrower in a principal amount equal to its such Person’s Additional Term Commitment. The Borrower shall prepay .
(c) Any other terms of and documentation entered into in respect of any Revolving Loans outstanding on the Additional Commitments Effective Date shall be on terms and pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Commitments (including with respect to any Additional Revolving Commitment voluntary and mandatory prepayments), other than as contemplated by Section 2.16(a)(iii), (and pay any additional amounts required pursuant to Section 2.16iv), (v), (vii), (viii) or (ix) above; provided that to the extent necessary such other terms and documentation in respect of any Additional Term Loans are not consistent with those of the Initial Term Loans (except to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in extent permitted by Section 2.16(a)(iii), (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory to the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b)Administrative Agent.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Borrowing Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Borrowing Amendment but no other existing Lender), and the Additional Credit Extension Borrowing Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.202.16.
(e) This Section 2.20 2.16 shall supersede any provisions in Section 2.18 2.13 or Section 9.02 11.01 to the contrary.
Appears in 1 contract
Sources: Second Lien Credit Agreement (American Renal Associates Holdings, Inc.)
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments of any the Class of Revolving Credit Commitments with the Latest Maturity Date and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap$500,000,000;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term LoansDate;
(viiv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause “Outstanding Term Loans”);
(vi), v) the amortization requirements Applicable Rate with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the lenders of the Additional Term LendersLoans; provided that in the event that the All-In Yield Applicable Rate for any Additional Non-Institutional Term Loans is greater than the All-In Yield Applicable Rate for the Initial Tranche A Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Tranche A Term Loans shall be increased to the extent necessary so that the AllApplicable Rate for the Additional Non-In Yield for such Additional Institutional Term Loans is not more than 50 basis points higher than the All-In Yield Applicable Rate for the Initial Tranche A Term Loans; provided, further, that, in determining the Applicable Rate with respect to Additional Term Loans or the applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included, (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (C) the amount by which any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to such Outstanding Term Loans shall be equated to an increase in the Applicable Rate for the Additional Term Loans for purposes of this clause (v);
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) except during the Collateral Suspension Period (A) unless the security interest and guaranties benefiting Borrower shall have elected to terminate the Collateral Suspension Period), the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will shall rank pari passu with or junior in right of payment and and/or of security with the existing FacilitiesLoans, (B) no Person shall guarantee the obligations with respect and if junior in right of payment and/or security, on terms and pursuant to documentation reasonably satisfactory to the Additional Term Loans and/or Additional Revolving Commitments Administrative Agent; and
(and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (Cix) the Additional Term Loans and/or Additional Revolving Commitments may have optional prepayment terms (including call protection and advances prepayment premiums) and mandatory prepayment terms as may be agreed between the Borrower and the lenders of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial so long as such Additional Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event do not participate on a greater than pro rata basis); and
(x) basis in any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant such mandatory prepayments as compared to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Tranche A Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (ivi) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (xb), respectively, of Section 6.01, (ii) are satisfiedno Default or Event of Default exists and (iii) the Borrower shall be in compliance, and setting on a Pro Forma Basis, with the financial covenants set forth the calculation of the Incremental Cap.
(c) in Section 7.11. On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Person with an Additional Term Lender Commitment shall make an Additional Term Loan to the Borrower in a principal amount equal to its such Person’s Additional Term Commitment. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 2.163.05) to the extent necessary to keep the outstanding Revolving Credit Loans pro rata across all Classes of ratable with any revised Applicable Revolving Commitments Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments. If there is a new borrowing Borrowing of Revolving Credit Commitments on such Additional Commitments Effective Date, the Revolving Credit Lenders after giving effect to such Additional Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(b).
(c) Any other terms of and documentation entered into in respect of any Additional Term Commitments shall be on terms and pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.14(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that to the extent such other terms and documentation in respect of any Additional Non-Institutional Term Loans are not consistent with those of the Tranche A Term Loans (except to the extent permitted by Section 2.14(a)(iii), (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory to the Administrative Agent.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.202.14.
(e) This Section 2.20 2.14 shall supersede any provisions in Section 2.18 2.13 or Section 9.02 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (MSCI Inc.)
Increase in Commitments. (a) The Borrower may by Prior to the Maturity Date and upon at least 30 days' but no more than 45 days' prior written notice to the Administrative Agent elect (which notice shall be promptly transmitted by the Administrative Agent to seek (x) commitments (“Additional Revolving Commitments”) each Lender), the Borrower shall have the one-time right, subject to the terms and conditions set forth below, to increase the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereofLoan Commitment; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (Ba) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans Loan Commitment may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders; provided that in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall not be increased to an amount greater than Four Hundred Million Dollars ($400,000,000) without the extent necessary so that prior written consent of the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Required Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice no Default or Event of Default shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall exist and be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment continuing either prior to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders or after giving effect to such Additional Revolving Commitments shall make increase, (c) such Revolving Loans increase must be in accordance with Section 2.01(b).
a minimum amount of $10,000,000 and in integral multiples of $1,000,000 above such amount, (d) The Additional Commitments no individual Lender's Commitment may be increased without such Lender's consent, (e) the Borrower shall execute and deliver such Note(s) as are necessary to reflect such increase in the Revolving Loan Commitment, (f) Schedule 1.1 shall be documented by amended to reflect the revised Commitments of the Lenders and (g) if any Loans are outstanding at the time of such increase, the Borrower will prepay (provided that any such prepayment shall be subject to Section 4.3) one or more existing Loans in an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified amount necessary such that after giving effect to such increase in the definition Revolving Loan Commitment each Lender will hold its pro rata share (based on its share of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for revised Revolving Loan Commitment) of outstanding Loans. Any such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, increase in the reasonable opinion Revolving Loan Commitment shall apply, at the option of the Administrative Agent and the Borrower, to effect (i) the provisions Commitment of this Section 2.20.
one or more existing Lenders; provided that any Lender whose Commitment is being increased must consent in writing thereto (esuch consent to be in such existing Lender's sole discretion) This Section 2.20 shall supersede and/or (ii) the creation of a new Commitment to one or more institutions that is not an existing Lender; provided that any provisions in Section 2.18 or Section 9.02 such institution (A) must conform to the contrarydefinition of Eligible Assignee and (B) must become a Lender under this Credit Agreement by execution and delivery of an appropriate joinder agreement or of counterparts to this Credit Agreement in a manner acceptable to the Borrower and the Administrative Agent.
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Increase in Commitments. (a) The Borrower may by written notice At any time prior to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase Business Day immediately preceding the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase Maturity Date, the Borrowers may effectuate one or more increases in the aggregate principal amount of any existing Class of Term Loans US Commitments and/or Canadian Commitments or to establish add one or more new Classes term loan facilities hereunder (each such increase or new term loan facility being a “Commitment Increase”), by designating either one or more of Term Loansthe existing Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) or one or more other Eligible Assignees that at the time agree, in the case of any such Eligible Assignee that is an existing Lender to increase its US Commitment and/or its US Commitment or provide a new term loan commitment as such Lender shall so select (an “Increasing Lender”) and, in the case of any other Eligible Assignee that is not an existing Lender (an “Additional Lender”), to become a party to this Agreement as a Lender; provided provided, however, that:
(i) each such Commitment Increase shall be equal to at least $5,000,000;
(ii) the aggregate amount of all Additional Commitments such Commitment Increases shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i)50,000,000;
(iii) no existing Lender the aggregate amount of all such Commitment Increases in the form of one or more term loan facilities shall be required to provide any Additional Commitmentsnot exceed $25,000,000;
(iv) as of each date of borrowing of no Default shall exist immediately prior to and after giving effect to any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test PeriodCommitment Increase;
(v) with respect to any Commitment Increase in the final form of one or more term loan facilities, after giving pro forma effect to any such new additional term loans under a new term loan facility (and any Advances hereunder made on the effective date of such term loan facilities), the Leverage Ratio shall be no greater than 2.00 to 1.00;
(vi) no Lender shall be required or otherwise obligated to provide any Commitment Increase or any portion thereof;
(vii) the scheduled maturity date of any Additional Term Loans new term loan facility shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans and no other scheduled amortization prepayments shall have a Weighted Average Life to Maturity equal to or greater be required thereunder other than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject those that apply to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Additional Term Lendersexisting Facilities; provided that in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;and
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless each such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment Increase shall have the same maturity dates and be on terms as the same pricing (excluding upfront fees and existing Facilities other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, than (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, original issue discounts, fees if any, upfront fees, and optional and mandatory prepayment provisions applicable customary arrangement, structuring, or underwriting fees, if any, payable to one or more arrangers (or their affiliates) of any such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) Commitment Increase and (B) operational and structural terms reasonably acceptable to the covenants Borrowers, such Increasing Lenders and other terms the applicable Administrative Agent as may be necessary to implement such Additional Term Loans (excluding those terms described Commitment Increases in the immediately preceding clause (A)), which form of a new term loan facility. The US Borrower shall be as agreed between provide prompt notice of such proposed Commitment Increase pursuant to this Section 2.17 to the Borrower US Administrative Agent and the Additional Term Lenders, . This Section 2.17 shall not be materially more favorable (when taken as a whole) construed to create any obligation on the Additional Term US Administrative Agent or any of the Lenders than those applicable to advance or to commit to advance any credit to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except or to the extent such covenants and arrange for any other terms apply solely Person to advance or to commit to advance any credit to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other LendersBorrower.
(b) Each such notice The Commitment Increase shall specify (x) become effective on the date (each, an the “Additional Commitments Effective Increase Date”) on or prior to which each of following conditions shall have been satisfied: (i) the Borrower proposes that receipt by the US Administrative Agent of (A) an agreement in form and substance reasonably satisfactory to the US Administrative Agent signed by the Borrowers, each Increasing Lender and/or each Additional Commitments shall Lender, setting forth the Commitments, if any, of each such Increasing Lender and/or Additional Lender and, if applicable, setting forth the agreement of each Additional Lender to become a party to this Agreement and to be effectivebound by all the terms and provisions hereof binding upon each Lender, which shall be a Business Day if any of the terms of such Commitment Increase differs from the Canadian Facility or the US Facility, as applicable, (B) an amendment to this Agreement signed by the Borrowers, the Administrative Agents and such Increasing Lenders and Additional Lenders, as applicable, to amend the necessary provisions of this Article 2 to account for the terms of such Commitment Increase, and (yC) such evidence of appropriate authorization on the identity part of the Persons Borrowers with respect to such Commitment Increase and such customary legal opinions as the US Administrative Agent may reasonably request, (ii) in the case of any Commitment Increase in respect of the US Commitments, the funding by each of which shall be an Eligible Assignee (for this purpose treating a Increasing Lender and Additional Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment US Advances to be provided made by each such Person. As a condition precedent Lender to effect the effectiveness reallocations required in clause (c) below, (iii) in the case of any Additional Commitment Increase in respect of the Canadian Commitments, the Borrower shall deliver funding by each Increasing Lender and Additional Lender of the Canadian Advances to be made on the Increase Date, if any, in the amount of such Lender’s increased Canadian Commitment, (iv) receipt by the US Administrative Agent of a certificate dated as of an authorized officer of the Additional Commitments Effective Date signed by a Responsible Officer of the US Borrower certifying that, that (A) both before and after giving effect to such Commitment Increase, no Default has occurred and is continuing, (B) all representations and warranties made by the Additional Commitments Borrowers in this Agreement are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and assuming full utilization warranties that already are qualified or modified by materiality in the text thereof), unless such representation or warranty relates to an earlier date which remains true and correct in all material respects as of such earlier date (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), and (C) the requirements Parent is in pro forma compliance with the covenants in Section 6.16, after giving pro forma effect to the making of Section 2.20(a)(i)any Advances in connection with the relevant increase in the US Commitment or Canadian Commitment, (iv) or any such new additional term loans under a new term loan facility, and (xv) are satisfiedreceipt by the Increasing Lender or Additional Lender, as applicable, of all such fees as agreed to between such Increasing Lender and setting forth /or Additional Lender and the calculation of the Incremental Capapplicable Borrower.
(c) On each Additional any Increased Date on which there is a Commitment Increase in the Canadian Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.162.17, (i) each of the Canadian Facility Lenders shall assign to each of the extent necessary Increasing Lenders with regard to keep such Commitment Increase, and each of such Increasing Lender shall purchase from each of the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase Canadian Facility Lenders, at the principal amount thereof, such interests in the Revolving Commitments. If there is a new borrowing of Revolving Commitments Canadian Advances outstanding on such Additional Commitments Effective DateIncreased Date as shall be necessary in order that, the Revolving Lenders after giving effect to all such Additional Revolving Commitments shall make assignments and purchases, such Revolving Loans Canadian Advances will be held by existing Canadian Facility Lenders and the Increasing Lenders ratably in accordance with their Canadian Commitments after giving effect to the addition of such Commitment Increase in the Canadian Commitments, (ii) each Commitment Increase in the Canadian Commitments shall be deemed for all purposes a Canadian Commitment and each Canadian Advance made thereunder shall be deemed, for all purposes, a Canadian Advance and (iii) each Increasing Lender shall become a Canadian Facility Lender with respect to the Commitment Increase and all matters relating thereto. The Canadian Administrative Agent and the Canadian Facility Lenders hereby agree that the minimum borrowing and prepayment requirements in Section 2.01(b)2.4 of this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. Notwithstanding any provision contained herein to the contrary, from and after the date of such Commitment Increase, all calculations and payments of interest on the Canadian Advances shall take into account the actual Canadian Commitment of each Canadian Facility Lender and the principal amount outstanding of each Canadian Advance made by such Lender during the relevant period of time.
(d) The Additional On any Increase Date on which there is a Commitment Increase in the US Commitments pursuant to Section 2.17, (i) each of the US Facility Lenders shall assign to each of the Increasing Lenders with regard to such Commitment Increase, and each of such Increasing Lender shall purchase from each of the US Facility Lenders, at the principal amount thereof, such interests in the US Advances outstanding on such Increased Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such US Advances will be held by existing US Facility Lenders and the Increasing Lenders ratably in accordance with their US Commitments after giving effect to the addition of such Commitment Increase in the US Commitments, (ii) each Commitment Increase in the US Commitments shall be documented by an Additional Credit Extension Amendment executed by deemed for all purposes a US Commitment and each US Advance made thereunder shall be deemed, for all purposes, a US Advance and (iii) each Increasing Lender shall become a US Facility Lender with respect to the Persons providing the Additional Commitments (Commitment Increase and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the all matters relating thereto. The US Administrative Agent and the Borrower, to effect US Facility Lenders hereby agree that the provisions minimum borrowing and prepayment requirements in Section 2.4 of this Section 2.20Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. Notwithstanding any provision contained herein to the contrary, from and after the date of such Commitment Increase, all calculations and payments of interest on the US Advances shall take into account the actual US Commitment of each US Facility Lender and the principal amount outstanding of each US Advance made by such Lender during the relevant period of time.
(e) This Section 2.20 On such Increase Date if such Commitment Increase involves an increase in the aggregate US Commitments, each US Facility Lender’s share of the Letter of Credit Exposure and participations in respect of Swing Line Advances on such date shall supersede automatically be deemed to equal such Lender’s US Pro Rata Share of such Letter of Credit Obligations and participations in respect of Swing Line Advances (such US Pro Rata Share for such Lender to be determined as of the Increase Date in accordance with its US Commitment on such date as a percentage of the aggregate US Commitments on such date) without further action by any provisions in Section 2.18 or Section 9.02 to the contraryparty.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by Prior to the Maturity Date and upon at least 45 days’ prior written notice to the Administrative Agent elect (which notice shall be promptly transmitted by the Administrative Agent to seek (x) commitments (“Additional Revolving Commitments”) each Lender), the Borrower shall have the revocable right, from time to increase time during the Revolving Commitments term of any Class and/or (y) commitments (“Additional Term Commitments”) this Agreement and subject to the terms and conditions set forth below, to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loansthe Aggregate Commitments; provided that:
that (ia) no Default or Event of Default shall exist at the aggregate amount time of all Additional Commitments shall not exceed the Incremental Cap;
request or the proposed increase in the Aggregate Commitments, (iib) any such increase or any new Class shall must be in an aggregate a minimum amount of $10,000,000 or any whole multiple 25,000,000 and in integral multiples of $1,000,000 in excess thereof; provided that 5,000,000 above such amount amount, (c) the sum of any increases to the Commitment during the term of this Agreement shall not exceed FIVE HUNDRED MILLION DOLLARS ($500,000,000), (d) no individual Lender’s Commitment may be less than $10,000,000 if increased without such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving CommitmentsLender’s written consent, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (Be) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on execute and deliver such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage RatioNote(s) as are necessary to reflect the increase in the respective Commitments, (f) Schedule 1.1 shall be amended to reflect the revised Commitments and revised Applicable Percentages of the last day Lenders and (g) if any Loans are outstanding at the time of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders; provided that an increase in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Aggregate Commitments, the Borrower will prepay (provided that any such prepayment shall deliver not be subject to the Administrative Agent a certificate dated as any minimum amount of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and prepayment or any requirements regarding pro rata repayments but shall be subject to Section 3.5) one or more existing Loans in an amount necessary such that after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Aggregate Commitments each Lender will hold its pro rata share (based on its share of the revised Aggregate Commitments) of outstanding Loans. If there is a new borrowing of Revolving Commitments on Any such Additional Commitments Effective Date, increase in the Revolving Lenders after giving effect to such Additional Revolving Aggregate Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by apply, at the Persons providing the Additional Commitments (and the other Persons specified in the definition option of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect (x) the provisions Commitment of one or more existing Lenders; provided that any Lender whose Commitment is being increased must consent in writing thereto and if more than one Lender wishes to participate then such increase shall be allocated pro rata among such Lenders (based on the amount that each such Lender was willing to increase its Commitment) and/or (y) a new Commitment for one or more institutions that is not an existing Lender so long as such institution (A) conforms to the definition of Eligible Assignee, (B) is approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed), (C) receives a Commitment of at least $5,000,000 and (D) becomes a Lender under this Section 2.20.
(e) Agreement by execution and delivery of an appropriate joinder agreement or of counterparts to this Agreement in a manner acceptable to the Borrower and the Administrative Agent. This Section 2.20 shall supersede any provisions in Section 2.18 2.13 or Section 9.02 10.6 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
: (i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
; (ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
; (iii) no existing Lender shall be required to provide any Additional Commitments;
; (iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn -86- and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
; (v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
; (vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
; (vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders; provided that in the event that the All-In Yield for any Additional Term Loans incurred within twelve months after the Closing Date is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
; (viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
; (ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
and (x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term -87- Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20.
. (e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Virtus Investment Partners, Inc.)
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Credit Commitments”) to increase the Revolving Credit Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap$500,000,000;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term LoansDate;
(viiv) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause “Outstanding Term Loans”);
(vi), v) the amortization requirements Applicable Rate with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the lenders of the Additional Term LendersLoans; provided that in the event that the All-In Yield Applicable Rate for any Additional Non-Institutional Term Loans is greater than the All-In Yield Applicable Rate for the Initial Tranche A Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Tranche A Term Loans shall be increased to the extent necessary so that the AllApplicable Rate for the Additional Non-In Yield for such Additional Institutional Term Loans is not more than 50 basis points higher than the All-In Yield Applicable Rate for the Initial Tranche A Term Loans; provided, further, that, in determining the Applicable Rate with respect to Additional Term Loans or the applicable Class of Outstanding Term Loans pursuant to this clause (v), (A) original issue discount (“OID”) or upfront or similar fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the lenders providing such Additional Term Loans or such Outstanding Term Loans in the primary syndication thereof (with OID being equated to interest based on an assumed four-year life to maturity) shall be included, (B) customary arrangement or commitment fees payable to any lead arranger (or its affiliates) in connection with the Additional Term Loans or Outstanding Term Loans shall be excluded, and (C) the amount by which any Eurodollar Rate “floor” or Base Rate “floor” applicable to any Additional Term Loans exceeds the Eurodollar Rate “floor” or Base Rate “floor” applicable to such Outstanding Term Loans shall be equated to an increase in the Applicable Rate for the Additional Term Loans for purposes of this clause (v);
(vi) no existing Lender shall be required to provide any Additional Commitments;
(vii) subject to clause (iv), the amortization schedule applicable to the Additional Term Commitments shall be determined by the Borrower and the lenders thereof;
(viii) except during the Collateral Suspension Period (A) unless the security interest and guaranties benefiting Borrower shall have elected to terminate the Collateral Suspension Period), the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will shall rank pari passu with or junior in right of payment and and/or of security with the existing FacilitiesLoans, (B) no Person shall guarantee the obligations with respect and if junior in right of payment and/or security, on terms and pursuant to documentation reasonably satisfactory to the Additional Term Loans and/or Additional Revolving Commitments Administrative Agent; and
(and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (Cix) the Additional Term Loans and/or Additional Revolving Commitments may have optional prepayment terms (including call protection and advances prepayment premiums) and mandatory prepayment terms as may be agreed between the Borrower and the lenders of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial so long as such Additional Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event do not participate on a greater than pro rata basis); and
(x) basis in any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant such mandatory prepayments as compared to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Tranche A Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day date reasonably acceptable to the Administrative Agent and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (ivi) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (xb), respectively, of Section 6.01, (ii) are satisfiedno Default or Event of Default exists and (iii) the Borrower shall be in compliance, and setting on a Pro Forma Basis, with the financial covenants set forth the calculation of the Incremental Cap.
(c) in Section 7.11. On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Person with an Additional Term Lender Commitment shall make an Additional Term Loan to the Borrower in a principal amount equal to its such Person’s Additional Term Commitment. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 2.163.05) to the extent necessary to keep the outstanding Revolving Credit Loans pro rata across all Classes of ratable with any revised Applicable Revolving Commitments Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments. If there is a new borrowing Borrowing of Revolving Credit Commitments on such Additional Commitments Effective Date, the Revolving Credit Lenders after giving effect to such Additional Revolving Credit Commitments shall make such Revolving Credit Loans in accordance with Section 2.01(b).
(c) Any other terms of and documentation entered into in respect of any Additional Term Commitments shall be on terms and pursuant to documentation agreed between the Borrower and the Lenders providing such Additional Term Commitments (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.14(a)(iii), (iv), (v), (vii), (viii) or (ix) above; provided that to the extent such other terms and documentation in respect of any Additional Non-Institutional Term Loans are not consistent with those of the Tranche A Term Loans (except to the extent permitted by Section 2.14(a)(iii), (iv), (v), (vii), (viii) or (ix) above) they shall be reasonably satisfactory to the Administrative Agent.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.202.14.
(e) This Section 2.20 2.14 shall supersede any provisions in Section 2.18 2.13 or Section 9.02 10.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (MSCI Inc.)
Increase in Commitments. (a) The Borrower may at any time or from time to time after the Effective Date, by written notice to the Administrative Agent elect (whereupon the Administrative Agent shall promptly deliver a copy to seek each of the Lenders), request (x) one or more new commitments which may be of the same Class as any outstanding Term Loans (a “Additional Revolving CommitmentsTerm Loan Increase”) to increase the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing or a new Class of Term Loans (collectively with any Term Loan Increase, the “Incremental Term Loans”), or to establish (y) one or more new Classes increases in the amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”, together with any Incremental Term Loans; , referred to herein as an “Incremental Facility”), provided that:
that (i) at the aggregate amount time of all Additional Commitments each such request and upon the effectiveness of each Incremental Facility, (x) no Default or Event of Default has occurred and is continuing or would result therefrom (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, (A) no Event of Default shall not exceed be continuing at the Incremental Cap;
time of execution of the applicable contract or agreement for such acquisition and (B) no Event of Default under Sections 7.01(a), (b), (h) or (i) shall be continuing at the time of making such acquisition)) and (y) the condition in Section 4.02(b) shall be satisfied (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, such representations shall be limited to the Specified Representations (as defined in the Existing Credit Agreement, which shall be conformed as reasonably necessary for such acquisition to provide for certainty of funding in connection with such transaction)), (ii) no Lender shall be obligated to provide an Incremental Facility as a result of any such increase or request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Facility and executed and delivered to the Administrative Agent and the Borrower an Incremental Facility Agreement as provided in clause (c) of this Section 2.23, such Lender shall not be obligated to fund any new Class Incremental Facility, (iii) any Lender may so provide an Incremental Facility without the consent of any other Lender, (iv) Incremental Facilities shall be denominated in dollars, (v) the Incremental Loan Commitment Requirements shall have been satisfied, and (vi) the provision of Incremental Facilities pursuant to this Section 2.23 on a given date pursuant to a particular Incremental Facility Agreement shall be in an a minimum aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; 5,000,000 (provided that such amount may be less than $10,000,000 5,000,000 if such amount represents all remaining availability under the limit set forth in the preceding next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Facilities shall not exceed the sum of (the “Incremental Cap”): (i) $75,000,000 plus (ii) an amount so long as, in the case of this clause (iii);, the First Lien Net Leverage Ratio would not exceed 4.25:1.00, calculated at the time of incurrence on a pro forma basis after giving effect thereto and the application of the proceeds thereof, and assuming any such Incremental Facility is secured on a first lien basis, whether or not so secured (and, in the case of any Revolving Commitment Increase, assuming a full drawing of such Revolving Commitment Increase). The amount of such Incremental Facility together with any Incremental Equivalent Debt shall not exceed the Incremental Cap.
(iiib) no existing Lender The Incremental Term Loans (i) shall be required rank pari passu in right of payment and pari passu or junior (subject to provide any Additional Commitments;
(ivan intercreditor agreement reasonably satisfactory in form and substance to the Administrative Agent) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with respect to security with the Financial Performance Covenant recomputed existing Term Loans, shall not be guaranteed by any Person that has not guaranteed the existing Term Loans and shall not be secured by assets other than Collateral; (assuming the applicable Additional Revolving Commitments established ii) shall mature on such date are fully drawn and without netting amortize on such schedule as each may be agreed by the cash proceeds of any Additional Borrower and the Lenders providing such Incremental Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) Loan, provided that, as of the last day of the Test Period;
(v) the final maturity date of any Additional incurrence, no Incremental Term Loans Loan shall be no mature earlier than the Latest Term Maturity Date applicable to and, as of the date of incurrence, each Class of Incremental Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans Loan shall have a Weighted Average Life to Maturity equal to or greater that is no shorter than the then remaining Weighted Average Life to Maturity of each Class of the existing Term Loans outstanding prior Loans; (iii) except with respect to such proposed incurrence of Additional Term Loans the applicable interest rate (it being understood that, subject to the foregoing requirements of clause (e) below) and as set forth in this clause (vib), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be on terms and pursuant to documentation determined by the Borrower and the Additional Term Lenders; provided that in Lenders providing the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Incremental Term Loans;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (Biv) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share may participate on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a or less than pro rata basis (but in no event not on a greater than pro rata basisbasis (except in respect of any voluntary prepayments of any Class of Loans with an earlier maturity date than any other Class of Loans or in the case of any permitted refinancing thereof)) in any voluntary or mandatory prepayments of Loans hereunder; and
and (v) may include any Previously Absent Financial Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Covenant for the benefit of each Class (provided, however, that if (x) the documentation governing any Additional Incremental Facility that includes a Previously Absent Financial Covenant in respect of and for the benefit of an Revolving Commitment Increase only and (y) such Previously Absent Financial Covenant is a financial maintenance covenant solely for the benefit of a Class of Revolving Loans (and not any Class of Term Loans), the Previously Absent Financial Covenant shall have only be required to be included in this Agreement for the same maturity dates and be on benefit of Revolving Loans); provided that (x) the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation conditions applicable to the Revolving Commitments of such Class that is being increased, and any Additional Incremental Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment may also include any additional or different financial or other covenants or other provisions applicable to such Additional Term Loans shall be as that are agreed between the Borrower and the Additional Lenders thereof so long as such additional covenants or other provisions are applicable only during periods after the latest Maturity Date for the Term Lenders but subject to Loans in effect on the foregoing clauses (v)date the Incremental Term Loans are issued, (vi), (vii) incurred or obtained or the date on which all non-refinanced Obligations are paid in full and (ixy) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants terms and other terms apply solely to any period after documentation are not consistent with the Latest Maturity Date then applicable to any Class of existing Term Loans (except with respect to the applicable interest rate, upfront fees, original issue discount or similar fees and as otherwise set forth in this paragraph), such covenants or other terms apply equally for and documentation shall be reasonably satisfactory to the benefit of the other Lenders.
(b) Each such notice shall specify Administrative Agent; provided, further, that (x) the date (each, any Incremental Term Loans that rank pari passu in right of security and are issued pursuant to an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments agreement other than this Agreement shall be effective, which shall be a Business Day in the form of notes and not loans and (y) to the identity of extent such Incremental Term Loans rank junior with respect to security with the Persons (each of which existing Term Loans, such Incremental Term Loans shall be subject to an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver intercreditor arrangement reasonably satisfactory to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental CapAgent.
(c) On Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Borrower and the Administrative Agent and, in the case of a Revolving Commitment Increase, the Issuing Bank and each Swingline Lender shall have consented (such consents not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, as applicable. Commitments Effective Date with in respect of Incremental Facilities shall become effective pursuant to any Additional Term Commitmentan amendment (an “Incremental Facility Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Facilities, if any, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective DateLender, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender)if any, and the Additional Credit Extension Amendment may provide for Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed). The Incremental Facility Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, Borrower to effect the provisions of this Section 2.202.22. The effectiveness of any Incremental Facility Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.02 (other than as set forth in clause (a) of this Section 2.23) and such other conditions as the parties thereto shall agree.
(d) The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees in writing. Upon each increase in the Revolving Commitments pursuant to this Section 2.23, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Credit Commitment. In addition, (x) each of the Revolving Lenders immediately prior to such increase shall assign to each Revolving Commitment Increase Lender and each of the Revolving Commitment Increase Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the Revolving Loans outstanding on such Incremental Facility Agreement closing date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and Revolving Commitment Increase Lender ratably in accordance with their Revolving Commitments after giving effect to the addition of such Revolving Commitment Increases, (y) each Revolving Commitment Increase shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (z) each Revolving Commitment Increase Lender shall become a Lender with respect to the Revolving Commitment Increase and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately two preceding sentences so long as the Revolving Lenders and Term Lenders do not receive less than pro rata treatment.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 The All-In Yield applicable to the contraryIncremental Facility, that is secured on a pari passu basis with the Obligations, shall be determined by the Borrower and the applicable lenders and shall be set forth in each applicable Incremental Facility Agreement; provided, however, that (A) with respect to any Incremental Term Loans, the All-In Yield applicable to such Incremental Term Loans shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Term Loans existing at such time plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the Adjusted LIBO Rate floor or Alternate Base Rate floor) with respect to such Term Loans is increased so as to cause the then applicable All-In Yield under this Agreement on such Term Loans to equal the All-In Yield then applicable to the Incremental Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of a Adjusted LIBO Rate floor or Alternate Base Rate floor on any Incremental Facility shall be effected solely through an increase in (or implementation of, as applicable) of a Adjusted LIBO Rate floor or Alternate Base Rate floor for such Loan. For the avoidance of doubt this clause (e) shall not apply to Incremental Equivalent Debt incurred in compliance with clause (f) below.
(f) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time after the Effective Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or secured on a pari passu or junior lien basis with the Obligations under the initial Loans), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Facility (the “Incremental Equivalent Debt”); provided that (i) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of any Loan Party or any Restricted Subsidiary other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any guarantee by any Person other than the Loan Guarantors, (ii) if such Incremental Equivalent Debt is (x) secured on a pari passu or junior basis with the Obligations under the initial Loans, then such Incremental Equivalent Debt shall be subject to an intercreditor agreement that is reasonably satisfactory, in form and substance, to the Administrative Agent and the Borrower or (y) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement reasonably satisfactory, in form and substance, to the Administrative Agent and the Borrower, (iii) such Incremental Equivalent Debt (A) shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing and (B) shall not have a Weighted Average Life to Maturity which is shorter than the Weighted Average Life to Maturity of the then existing Term Loans, (iv) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, customary offers to repurchase and prepayment events upon a change of control and a customary acceleration right after an event of default), (v) except as otherwise set forth in this clause (f), such Incremental Equivalent Debt shall have covenants and defaults no more restrictive (excluding pricing and optional prepayment or redemption terms), when taken as a whole, than those with respect to the initial Loans (except for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Loan) and such terms and conditions shall be current market terms for such type of Incremental Equivalent Debt (as reasonably determined in good faith b
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Increase in Commitments. (a) The At any time prior to the Business Day immediately preceding the later of the Revolving Maturity Date or the Term Maturity Date, as applicable, the Borrower may by written notice to effectuate one or more increases in the Administrative Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase the aggregate Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans Commitments or to establish add one or more new Classes term loan facilities hereunder (each such increase or new term loan facility being a “Commitment Increase”), by designating either one or more of the existing Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Commitment Increase) or one or more other Eligible Assignees that at the time agree, in the case of any such Eligible Assignee that is an existing Lender to increase its Revolving Commitment and/or its Term LoansCommitment or provide a new term loan commitment as such Lender shall so select (an “Increasing Lender”) and, in the case of any other Eligible Assignee that is not an existing Lender (an “Additional Lender”), to become a party to this Agreement as a Lender; provided provided, however, that:
(i) each such Commitment Increase shall be equal to at least C$5,000,000;
(ii) the aggregate amount of all Additional Commitments such Commitment Increases shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i)C$43,920,000;
(iii) no existing Lender Default shall be required exist immediately prior to provide and after giving effect to any Additional Commitmentssuch Commitment Increase;
(iv) as after giving pro forma effect to the making of each any Term Advances in connection with an increase in the Term Commitment, or any such new additional term loans under a new term loan facility, or any Revolving Advances made on the effective date of borrowing of any Additional Term Commitments or effectiveness of Additional such Commitment Increase involving an increase in the Revolving Commitments, (A) each of the conditions Borrower shall be in pro forma compliance with the covenants set forth in Section 4.02 shall be satisfied Sections 6.16 and 6.17, and (B) the Borrower Leverage Ratio shall be in compliance no greater than 2.00 to 1.00 for each fiscal quarter ending on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Periodafter September 30, 2014;
(v) no Lender shall be required or otherwise obligated to provide any Commitment Increase or any portion thereof;
(vi) the final scheduled maturity date of any Additional Term Loans new term loan facility shall be no earlier than the Latest Term Maturity Date applicable to each Class and the weighted average life of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans new term loan facility shall have a Weighted Average Life to Maturity equal to or greater be no shorter than the then remaining Weighted Average Life to Maturity weighted average life of each Class of the Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ)Facility;
(vii) the interest rate margins for the Additional Term Loans and (subject to clause (vi) above) amortization schedule applicable to any new term loan facility shall be determined by the Borrower and the Additional Term LendersLenders under such new term loan facility; provided that in the event that the All-In Yield interest rate margins for any Additional Term Loans is greater new term loan facility are higher than the All-In Yield interest rate margins for the Initial Term Loans by more than 50 basis pointsFacility, then the Applicable Rate interest rate margins for the Initial Term Loans Facility shall be increased to the extent necessary so that such interest rate margins are equal to the All-In Yield interest rate margins for such Additional new term loan facility; provided, further, that in determining the interest rate margins applicable to such new term loan facility and the Term Loans is not Facility, (A) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID, with OID being equated to interest based on assumed four year life to maturity or, with respect to such new term loan facility, if less, the then remaining life to maturity thereof) payable by the Borrower to the Lenders under the Term Facility or such new term loan facility in the initial primary syndication thereof shall be included and (B) customary arrangement, structuring, underwriting, amendment and/or commitment fees payable to any lead arranger (or affiliates thereof) in connection with the Term Facility or to one or more than 50 basis points higher than arrangers (or their affiliates) of any such new term loan facility shall be excluded (it being understood that the All-In Yield for effects of any and all interest rate floors shall be included in determining the Initial Term Loansinterest rates under this provision);
(viii) (A) except as set forth above, the security interest other terms and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances documentation in respect of credit thereunder) will rank pari passu in right of payment and security any such new term loan facility shall be consistent with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;Facility; and
(ix) any Additional Term Loans shall share on a pro rata basis each such Commitment Increase in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment Facility shall have the same maturity dates and be on the same pricing (excluding upfront terms, other than interest rate, commitment fees and other upfront fees, as the existing Revolving Facility; provided that in the event that the interest rate margins or commitment fees of for any such Commitment Increase are higher than the type excluded from interest rate margins or commitment fees for the determination of “All-In Yield”) and other terms and pursuant existing Revolving Facility, then the interest rate margins or commitment fees for the existing Revolving Facility shall be increased to the definitive documentation applicable extent necessary so that such interest rate margins or commitment fees, as applicable, are equal to the Revolving Commitments of interest rate margins or commitment fees, as applicable, for such Class Commitment Increase; provided, further, that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) in determining the final maturity, Weighted Average Life to Maturity, pricing, interest rate floors, discounts, fees and optional and mandatory prepayment provisions margins applicable to such Additional Term Loans Commitment Increase and the existing Revolving Facility, (x) upfront fees payable by the Borrower to the Lenders under such Commitment Increase or the existing Revolving Facility in the initial primary syndication thereof (with such upfront fees being equated to interest based on assumed four-year life to maturity or, with respect to any such Commitment Increase, if less, the then remaining life to maturity thereof) and the effects of any and all interest rate floors shall be as agreed between included and (y) customary arrangement, structuring, underwriting, amendment and/or commitment fees payable to any lead arranger (or affiliates thereof) in connection with the existing Revolving Facility or to one or more arrangers (or their affiliates) of any such Commitment Increase shall be excluded. The Borrower shall provide prompt notice of such proposed Commitment Increase pursuant to this Section 2.17 to the Administrative Agent and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, . This Section 2.17 shall not be materially more favorable (when taken as a whole) construed to create any obligation on the Administrative Agent or any of the Lenders to advance or to commit to advance any credit to the Additional Term Lenders than those applicable Borrower or to arrange for any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except other Person to advance or to commit to advance any credit to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other LendersBorrower.
(b) Each such notice The Commitment Increase shall specify (x) become effective on the date (each, an the “Additional Commitments Effective Increase Date”) on or prior to which the Borrower proposes that the Additional Commitments each of following conditions shall be effective, which shall be a Business Day and have been satisfied: (yi) the identity receipt by the Administrative Agent of the Persons (each of which shall be A) an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments agreement in form and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver substance reasonably satisfactory to the Administrative Agent signed by the Borrower, each Increasing Lender and/or each Additional Lender, setting forth the Commitments, if any, of each such Increasing Lender and/or Additional Lender and, if applicable, setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof binding upon each Lender, if any of the terms of such Commitment Increase differs from the Term Facility or the Revolving Facility, as applicable, (B) an amendment to this Agreement signed by the Borrower, the Administrative Agent and such Increasing Lenders and Additional Lenders, as applicable, to amend the necessary provisions of this Article 2 to account for the terms of such Commitment Increase, and (C) such evidence of appropriate authorization on the part of the Borrower with respect to such Commitment Increase and such customary legal opinions as the Administrative Agent may reasonably request, (ii) in the case of any Commitment Increase in respect of the Revolving Commitments, the funding by each Increasing Lender and Additional Lender of the Revolving Advances to be made by each such Lender to effect the reallocations required in clause (c) below, (iii) the funding by each Increasing Lender and Additional Lender of the Term Advances to be made on the Increase Date, if any, in the amount of such Lender’s increased Term Commitment, (iv) receipt by the Administrative Agent of a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer an authorized officer of the Borrower certifying that, that (A) both before and after giving effect to such Commitment Increase, no Default has occurred and is continuing, (B) all representations and warranties made by the Additional Commitments Borrower in this Agreement are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and assuming full utilization warranties that already are qualified or modified by materiality in the text thereof), unless such representation or warranty relates to an earlier date which remains true and correct in all material respects as of such earlier date (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), and (C) the requirements pro forma compliance with the covenants in Sections 6.16 and 6.17, after giving pro forma effect to the making of Section 2.20(a)(i)any Term Advances in connection with an increase in the Term Commitment, (iv) or any such new additional term loans under a new term loan facility, or any Revolving Advances made on the effective date of any such Commitment Increase involving an increase in the Revolving Commitments, and (xv) are satisfiedreceipt by the Increasing Lender or Additional Lender, as applicable, of all such fees as agreed to between such Increasing Lender and setting forth /or Additional Lender and the calculation of the Incremental CapBorrower.
(c) On each Additional any Increased Date on which there is a Commitment Increase in the Revolving Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.162.17, (i) each of the Revolving Lenders shall assign to each of the Increasing Lenders with regard to such Commitment Increase, and each of such Increasing Lender shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the Revolving Advances outstanding on such Increased Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Advances will be held by existing Revolving Lenders and the Increasing Lenders ratably in accordance with their Revolving Commitments after giving effect to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes addition of Revolving Commitments arising from any nonratable increase such Commitment Increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, (ii) each Commitment Increase in the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make be deemed for all purposes a Revolving Commitment and each Revolving Advance made thereunder shall be deemed, for all purposes, a Revolving Advance and (iii) each Increasing Lender shall become a Revolving Lender with respect to the Commitment Increase and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements in Section 2.4 of this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. Notwithstanding any provision contained herein to the contrary, from and after the date of such Commitment Increase, all calculations and payments of interest on the Revolving Loans in accordance with Section 2.01(b)Advances shall take into account the actual Revolving Commitment of each Revolving Lender and the principal amount outstanding of each Revolving Advance made by such Lender during the relevant period of time.
(d) The Additional Commitments shall be documented by On such Increase Date if such Commitment Increase involves an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified increase in the definition aggregate Revolving Commitments, each Revolving Lender’s share of Additional the Letter of Credit Extension Amendment but no other existing Exposure and participations in respect of Swing Line Advances on such date shall automatically be deemed to equal such Lender), ’s Revolving Pro Rata Share of such Letter of Credit Obligations and the Additional Credit Extension Amendment may provide participations in respect of Swing Line Advances (such Revolving Pro Rata Share for such amendments Lender to this Agreement and the other Loan Documents be determined as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Increase Date in accordance with its Revolving Commitment on such date as a percentage of the Borrower, to effect the provisions of this Section 2.20aggregate Revolving Commitments on such date) without further action by any party.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
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Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent elect Agent, at any time after the Closing Date, each Borrower may on up to seek three (x3) commitments different occasions (“in the aggregate for both Borrowers) request Additional Term Commitments or Additional Revolving Credit Commitments”) to increase the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
that (i) after giving effect to any such addition, the aggregate amount of all Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed the Incremental Cap;
$250,000,000; provided further that $100,000,000 of such aggregate amount shall only be permitted to be incurred as a Term Facility to be used solely to finance Permitted Acquisitions, (ii) any such increase or any new Class addition shall be in an aggregate amount of $10,000,000 50,000,000 or any whole multiple of $1,000,000 in excess thereof; thereof (provided that such amount may be less than $10,000,000 50,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso);
, (iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of for the Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
and (viB) the final maturity date of any Additional Term Revolving Credit Loans shall have a Weighted Average Life to Maturity equal to or greater be no earlier than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans Date for the Revolving Credit Loans, (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(viiiv) the interest margins for average life to maturity of the Additional Term Loans shall be determined by no shorter than the Borrower remaining average life to maturity of the Term Loans, and (v) if the Additional Term Lenders; provided that in the event that the All-In Yield for initial yield of any Additional Term Loans is greater than or any Additional Revolving Credit Loans (as determined by the All-In Yield for Administrative Agent to be equal (x) in the Initial case of Additional Term Loans by more than 50 basis pointsLoans, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
(viii) sum of (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations Applicable Rate with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (CB) if the Additional Term Loans and/or Additional Revolving Commitments are initially made at a discount or the Lenders making the same receive a fee from the applicable Borrower or any Subsidiary for doing so (and advances the amount of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on such discount or fee, expressed as a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by percentage of the Additional Term LendersLoans, on a less than pro rata basis being referred to herein as “OID”), the amount of OID divided by the lesser of (but in no event on a greater than pro rata basis); and
(x1) any Additional Revolving Commitment shall have the same average life to maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and (2) four and (y) in the case of Additional Revolving Credit Loans, to the Applicable Rate with respect to the Additional Revolving Credit Loans) exceeds the Applicable Rate then in effect for Term Commitments Loans or Revolving Credit Loans, as the case may be, by more than 50 basis points (the amount of such excess being referred to herein as “Yield Differential”), then each Applicable Rate for each adversely effected Term Loan or Revolving Credit Commitment shall automatically be on terms to be determinedincreased by the Yield Differential, provided that, (A) effective upon the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such making of the Additional Term Loans shall be as agreed between or the Borrower and providing of the Additional Term Lenders but subject to Revolving Credit Commitments, as the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenderscase may be.
(b) Each such notice If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the applicable Borrower shall specify (x) determine the effective date (each, an the “Additional Commitments Effective Date”) on and the final amount of such addition. The Administrative Agent shall promptly notify the applicable Borrower and the Lenders (which may include Persons reasonably acceptable to the Administrative Agent and the applicable Borrower proposes that were not Lenders prior to the Additional Commitments shall be effective, which shall be a Business Day and (yEffective Date) the identity of the Persons (each final amount of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide such addition and the Additional Commitments and the portion of the Additional Commitment to be provided by each such PersonEffective Date. As a condition precedent to the effectiveness of any Additional Commitmentssuch addition, the BV Borrower shall deliver to the Administrative Agent a certificate of the BV Borrower dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the BV Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article 5 and the other Loan Documents are true and correct in all material respects on and as of the Additional Commitments (Effective Date, except to the extent that such representations and assuming full utilization thereof) the requirements warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.20(a)(i2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (iva) and (xb), respectively, of Section 6.01, (ii) are satisfiedno Default or Event of Default exists immediately before or immediately after giving effect to such addition, (iii) the BV Borrower and setting forth the calculation its Restricted Subsidiaries shall be in Pro Forma Compliance with each of the Incremental Cap.
covenants set forth in Section 7.11 as of (cA) the Additional Commitments Effective Date and (B) the last day of the most recently ended determination period after giving Pro Forma Effect to such Additional Term Commitment or Additional Revolving Credit Commitment, as applicable, the making of Additional Term Loans or Additional Revolving Credit Loans, as the case may be, in respect thereof and any Investment or Disposition to be consummated in connection therewith. On each Additional Commitments Effective Date with respect to Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Term Commitment or Additional Revolving Credit Commitment (i) shall become a “Term Lender” or “Revolving Credit Lender”, as applicable, for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the applicable Borrower in a principal amount equal to its such Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (, and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments Term Loan shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition a “Term Loan” for all purposes of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary Documents.
(c) Any other terms of and documentation entered into in respect of any Additional Term Loans made or appropriateany Additional Revolving Credit Commitments provided, in each case pursuant to this Section 2.14, to the reasonable opinion of extent not consistent with the Term Loans or the Revolving Credit Commitments, as the case may be, shall be reasonably satisfactory to the Administrative Agent. Any Additional Term Loans or Additional Revolving Credit Commitments, as applicable, made or provided pursuant to this Section 2.14 shall be evidenced by one or more entries in the Register maintained by the Administrative Agent and the Borrower, to effect in accordance with the provisions of this set forth in Section 2.202.11.
(ed) This Section 2.20 2.14 shall supersede any provisions in Section 2.18 or Section 9.02 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Agent and the Loan Parties, if necessary, to provide for terms applicable to each Additional Term Commitment and/or Additional Revolving Credit Commitment, as the case may be.
Appears in 1 contract
Sources: Credit Agreement (Sensata Technologies Holland, B.V.)
Increase in Commitments. The Company shall have the right, so long as no Default shall have occurred and be continuing, without the consent of any Lender (except as described in clause (i) below) but with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), at any time prior to the Maturity Date, to increase the total aggregate amount of the Commitments hereunder by (a) The Borrower may by written notice adding a lender or lenders hereto with a Commitment or Commitments of up to the Administrative Agent elect to seek amount (xor aggregate amount) commitments of such increase (“Additional Revolving Commitments”which lender or lenders shall thereupon become "Lenders" hereunder) and/or (b) enabling any Lender or Lenders to increase its (or their) Commitment (or Commitments) up to the Revolving Commitments amount of any Class and/or such increase; provided that: (yi) commitments in no event shall any Lender's Commitment be increased without the consent of such Lender, (“Additional Term Commitments”ii) if any Revolving Loans are outstanding hereunder on the date that any such increase is to increase be effective, the aggregate principal amount of any existing Class such Revolving Loans shall on or prior to the effectiveness of Term such increase, at the option of the Borrowers, either (A) be repaid, together with accrued interest thereon and any costs incurred by any Lender in accordance with Section 2.14 (but all such Loans may, on the terms and conditions hereof, be reborrowed on the date that any such increase becomes effective pro rata among all of the Lenders) or to establish (B) be converted into Competitive Loans with the same terms (including, without limitation, interest rate) and maturity of such Revolving Loans, provided that the Competitive Loans into which such Revolving Loans are converted shall constitute a utilization of the Commitments, (iii) any such increase shall be in an integral multiple of $50,000,000, (iv) in no event shall any increase result in the total aggregate amount of the Commitments exceeding $1,250,000,000, (v) no increase in Commitments contemplated by this Section 2.19 shall result in any one or Lender having a Commitment in an amount which equals more new Classes than 20% of Term Loans; provided that:
(i) the aggregate amount of all Additional the Commitments shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitmentshereunder, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans no increase in Commitments shall have occur within 12 months of a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders; provided that reduction in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b)2.07.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may at any time or from time to time after the Effective Date, by written notice to the Administrative Agent elect (whereupon the Administrative Agent shall promptly deliver a copy to seek each of the Lenders), request (x) one or more new commitments which may be of the same Class as any outstanding Term Loans (a “Additional Revolving CommitmentsTerm Loan Increase”) to increase the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing or a new Class of Term Loans (collectively with any Term Loan Increase, the “Incremental Term Loans”), or to establish (y) one or more new Classes increases in the amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”, together with any Incremental Term Loans; , referred to herein as an “Incremental Facility”), provided that:
that (i) at the aggregate amount time of all Additional Commitments each such request and upon the effectiveness of each Incremental Facility, (x) no Default or Event of Default has occurred and is continuing or would result therefrom (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, (A) no Event of Default shall not exceed be continuing at the Incremental Cap;
time of execution of the applicable contract or agreement for such acquisition and (B) no Event of Default under Sections 7.01(a), (b), (h) or (i) shall be continuing at the time of making such acquisition)) and (y) the condition in Section 4.02(b) shall be satisfied (except, notwithstanding the requirements of Section 4.02, at the option of the Borrower in connection with an acquisition, in lieu of such condition, such representations shall be limited to the Specified Representations (as defined in the Existing Credit Agreement, which shall be conformed as reasonably necessary for such acquisition to provide for certainty of funding in connection with such transaction)), (ii) no Lender shall be obligated to provide an Incremental Facility as a result of any such increase or request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Facility and executed and delivered to the Administrative Agent and the Borrower an Incremental Facility Agreement as provided in clause (c) of this Section 2.23, such Lender shall not be 59562397_5 LEGAL_US_E # 113892680.8124105178.14 obligated to fund any new Class Incremental Facility, (iii) any Lender may so provide an Incremental Facility without the consent of any other Lender, (iv) Incremental Facilities shall be denominated in dollars, (v) the Incremental Loan Commitment Requirements shall have been satisfied, and (vi) the provision of Incremental Facilities pursuant to this Section 2.23 on a given date pursuant to a particular Incremental Facility Agreement shall be in an a minimum aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; 5,000,000 (provided that such amount may be less than $10,000,000 5,000,000 if such amount represents all remaining availability under the limit set forth in the preceding next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Facilities shall not exceed the sum of (the “Incremental Cap”): (i) $75,000,000 plus (ii) an amount so long as, in the case of this clause (iii);, the First Lien Net Leverage Ratio would not exceed 0.24.25:1.00 below the First Lien Net Leverage Ratio on the First Amendment Effective Date, calculated at the time of incurrence on a pro forma basis after giving effect thereto and the application of the proceeds thereof, and assuming any such Incremental Facility is secured on a first lien basis, whether or not so secured (and, in the case of any Revolving Commitment Increase, assuming a full drawing of such Revolving Commitment Increase). The amount of such Incremental Facility together with any Incremental Equivalent Debt shall not exceed the Incremental Cap.
(iiib) no existing Lender The Incremental Term Loans (i) shall be required rank pari passu in right of payment and pari passu or junior (subject to provide any Additional Commitments;
(ivan intercreditor agreement reasonably satisfactory in form and substance to the Administrative Agent) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with respect to security with the Financial Performance Covenant recomputed existing Term Loans, shall not be guaranteed by any Person that has not guaranteed the existing Term Loans and shall not be secured by assets other than Collateral; (assuming the applicable Additional Revolving Commitments established ii) shall mature on such date are fully drawn and without netting amortize on such schedule as each may be agreed by the cash proceeds of any Additional Borrower and the Lenders providing such Incremental Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) Loan, provided that, as of the last day of the Test Period;
(v) the final maturity date of any Additional incurrence, no Incremental Term Loans Loan shall be no mature earlier than the Latest Term Maturity Date applicable to and, as of the date of incurrence, each Class of Incremental Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans Loan shall have a Weighted Average Life to Maturity equal to or greater that is no shorter than the then remaining Weighted Average Life to Maturity of each Class of the existing Term Loans outstanding prior Loans; (iii) except with respect to such proposed incurrence of Additional Term Loans the applicable interest rate (it being understood that, subject to the foregoing requirements of clause (e) below) and as set forth in this clause (vib), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be on terms and pursuant to documentation determined by the Borrower and the Additional Term Lenders; provided that in Lenders providing the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Incremental Term Loans;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (Biv) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share may participate on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a or less than pro rata basis (but in no event not on a greater than pro rata basisbasis (except in respect of any voluntary prepayments of any Class of Loans with an earlier maturity date than any other Class of Loans or in the case of any permitted refinancing thereof)) in any voluntary or mandatory prepayments of Loans hereunder; and
and (v) may include any Previously Absent Financial Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Covenant for the benefit of each Class (provided, however, that if (x) the documentation governing any Additional Incremental Facility that includes a Previously Absent Financial Covenant in respect of and for the benefit of an Incremental Revolving Commitment Increase only and (y) such Previously Absent Financial Covenant is a “springing” financial maintenance covenant solely for the benefit of a Class of Revolving Loans (and not any Class of Term Loans), the Previously Absent Financial Covenant shall have only be required to be included in this Agreement for the same maturity dates and be on benefit of Revolving Loans); provided that (x) the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation conditions applicable to the Revolving Commitments of such Class that is being increased, and any Additional Incremental Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment may also include any additional or different financial or other covenants or other provisions applicable to such Additional Term Loans shall be as that are agreed between the Borrower and the Additional Lenders thereof so long as such additional covenants or other provisions are applicable only during periods after the latest Maturity Date for the Term Lenders but subject to Loans in effect on the foregoing clauses (v)date the Incremental Term Loans are issued, (vi), (vii) incurred or obtained or the date on which all non-refinanced Obligations are paid in full and (ixy) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants terms and other terms apply solely to any period after documentation are not consistent with the Latest Maturity Date then applicable to any Class of existing Term Loans (except with respect to the applicable interest rate, upfront fees, original issue discount or similar fees and as otherwise set forth in this paragraph), such covenants or other terms apply equally for and documentation shall be reasonably satisfactory to the benefit of the other Lenders.
(b) Each such notice shall specify Administrative Agent; provided, further, that (x) the date (each, any Incremental Term Loans that rank pari passu in right of security and are issued pursuant to an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments agreement other than this 59562397_5 LEGAL_US_E # 113892680.8124105178.14 Agreement shall be effective, which shall be a Business Day in the form of notes and not loans and (y) to the identity of extent such Incremental Term Loans rank junior with respect to security with the Persons (each of which existing Term Loans, such Incremental Term Loans shall be subject to an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver intercreditor arrangement reasonably satisfactory to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental CapAgent.
(c) On Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Borrower and the Administrative Agent and, in the case of a Revolving Commitment Increase, the Issuing Bank and each Swingline Lender shall have consented (such consents not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, as applicable. Commitments Effective Date with in respect of Incremental Facilities shall become effective pursuant to any Additional Term Commitmentan amendment (an “Incremental Facility Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Facilities, if any, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective DateLender, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender)if any, and the Additional Credit Extension Amendment may provide for Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed). The Incremental Facility Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, Borrower to effect the provisions of this Section 2.202.22. The effectiveness of any Incremental Facility Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.02 (other than as set forth in clause (a) of this Section 2.23) and such other conditions as the parties thereto shall agree.
(d) The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees in writing. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.23, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Credit Commitment. In addition, (x) each of the Revolving Credit Lenders immediately prior to such increase shall assign to each Revolving Commitment Increase Lender and each of the Incremental Revolving CreditCommitment Increase Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof, such interests in the Incremental Revolving Loans outstanding on such Incremental Facility Agreement closing date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Credit Lenders and Revolving Commitment Increase Lender ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Revolving Commitment Increases, (y) each Incremental Revolving Credit Commitment Increase shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (z) each Incremental Revolving CreditCommitment Increase Lender shall become a Lender with respect to the Incremental Revolving Credit 59562397_5 LEGAL_US_E # 113892680.8124105178.14 CommitmentsCommitment Increase and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately two preceding sentences so long as the Revolving Lenders and Term Lenders do not receive less than pro rata treatment.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 The All-In Yield applicable to the contraryIncremental Facility, that is secured on a pari passu basis with the Obligations, shall be determined by the Borrower and the applicable lenders and shall be set forth in each applicable Incremental Facility Agreement; provided, however, that (A) with respect to any Incremental FacilityTerm Loans, the All-In Yield applicable to such Incremental FacilityTerm Loans shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Term Loans existing at such time plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the Adjusted LIBO Rate floor or Alternate Base Rate floor) with respect to such Term Loans is increased so as to cause the then applicable All-In Yield under this Agreement on such Term Loans to equal the All-In Yield then applicable to the Incremental FacilityTerm Loans minus 50 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of a Adjusted LIBO Rate floor or Alternate Base Rate floor on any Incremental Facility shall be effected solely through an increase in (or implementation of, as applicable) of a Adjusted LIBO Rate floor or Alternate Base Rate floor for such Loan. For the avoidance of doubt this clause (e) shall not apply to Incremental Equivalent Debt incurred in compliance with clause (f) below.
(f) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time after the Effective Date, issue, incur or otherwise obtain Indebtedness of the Borrower (and any refinancing thereof) in respect of one or more series of senior or subordinated notes (which may be unsecured or secured on a pari passu or junior lien basis with the Obligations under the initial Loans), in each case issued in a public offering, Rule 144A or other private placement or bridge in lieu of the foregoing, or senior or subordinated mezzanine Indebtedness (which may be in the form of loans or notes and limited to being unsecured or secured solely on a junior lien basis), in each case, that are issued or made in lieu of Incremental Facility (the “Incremental Equivalent Debt”); provided that (i) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of any Loan Party or any Restricted Subsidiary other than any asset constituting Collateral and such Incremental Equivalent Debt shall not be subject to any guarantee by any Person other than the Loan Guarantors, (ii) if such Incremental Equivalent Debt is (x) secured on a pari passu or junior basis with the Obligations under the initial Loans, then such Incremental Equivalent Debt shall be subject to an intercreditor agreement that is reasonably satisfactory, in form and substance, to the Administrative Agent and the Borrower or (y) unsecured and subordinated to the Obligations, then such Incremental Equivalent Debt shall be subject to a lien subordination and intercreditor arrangement reasonably satisfactory, in form and substance, to the Administrative Agent and the Borrower, (iii) such Incremental Equivalent Debt (A) shall have a final maturity date which is no earlier than ninety-one (91) days after the Latest Maturity Date then existing and (B) shall not have a Weighted Average Life to Maturity which is shorter than the Weighted Average Life to Maturity of the then existing Term Loans, (iv) such Incremental Equivalent Debt shall not be subject to any mandatory redemption or prepayment provisions or rights (except to the extent any such mandatory redemption or prepayment is required to be applied first or pro rata to the Loans and any first lien secured incremental notes required to be secured on a first lien basis and except with respect to customary “AHYDO catch-up payments”, customary offers to repurchase and prepayment events upon a change of control and a customary acceleration right after an event of default), (v) except as otherwise set forth in this clause (f), such Incremental Equivalent Debt shall have covenants and de
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written Upon notice to the Administrative Agent elect (which shall promptly notify the Lenders), the Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments denominated in any currency to seek be incurred by the Borrower and/or any U.S. Subsidiary 102
(xb) commitments Any loans made in respect of any such additional Term Commitments (the “Additional Revolving CommitmentsIncremental Term Loans”) may be made, at the option of the Borrower, either by (i) increasing the Initial Term Loans or the 2022 Incremental Term B-2 Loans with the same terms (including pricing) as the existing Initial Term Loans or the 2022 Incremental Term B-2 Loans, as applicable, or (ii) creating a new tranche of terms loans (an “Incremental Term Loan Class”); provided that any Incremental Term Loan Class (A) shall not mature prior to increase the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) stated Maturity Date applicable to increase the aggregate principal amount of any existing latest maturing Class of Term Loans on the date of incurrence of such Incremental Term Loans, (B) the Weighted Average Life to Maturity of any Incremental Term Loan Class shall be no less than the Weighted Average Life to Maturity of such latest maturing Class of Term Loans and (C) any Incremental Term Loans may participate on a pro rata basis, a less than pro rata basis (or, solely as compared to any later maturing Class of Term Loans, greater than pro rata basis) in any mandatory prepayments (but on a pro rata basis, greater than pro rata basis or to establish one or more new Classes of a less than pro rata basis in any voluntary prepayments) with the then outstanding Term Loans; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, clauses (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) above shall not apply to (X) any customary bridge loans so long as any loans, notes, securities or other Indebtedness which exchanged for or otherwise replace such bridge loans satisfies (or will satisfy at the Borrower shall be time of incurrence or rollover) the requirements of such clauses and (Y) Incremental Facilities with an aggregate outstanding principal amount not in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds excess of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;$350,000,000.
(vc) Any such additional Revolving Credit Commitments may be made by (x) establishing one or more additional Classes of revolving credit commitments (an “Incremental Revolving Facility”); provided the (i) final maturity date of any Additional Term Loans such Incremental Revolving Facility shall be no earlier than the Latest Maturity Date applicable to each Class final maturity date of Term Loans outstanding the Initial Revolving Credit Facility, (ii) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to such proposed incurrence the final maturity date of Additional Term Loans;
(vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders; provided that in the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party Credit Facility and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ixiii) any Additional Term Loans shall share Incremental Revolving Facility may participate on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on or a less than pro rata basis (but in no event on not a greater than pro rata basis); and
) in any reduction or termination as compared to earlier maturing Revolving Credit Commitments or (xy) increasing any Additional Class of Revolving Commitment shall have Credit Commitments (the “Incremental Revolving Credit Commitments”) with the same maturity dates terms as such existing Class of Revolving Credit Commitments (it being understood that, if required to consummate an Incremental Revolving Facility, the pricing, interest rate margins, rate floors and be undrawn fees on the same pricing (excluding upfront fees and other fees Revolving Credit Facility being increased may be increased for all Revolving Credit Lenders of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is Credit Facility being increased, and any Additional Term Loans and Additional Term Commitments shall but additional upfront or similar fees may be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject payable to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described Lenders participating in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) Incremental Revolving Credit Commitments without any requirement to the Additional Term Lenders than those applicable pay such amounts to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faithexisting Revolving Credit Lenders), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(bd) Each such notice shall specify (x) the date The Borrower may invite any Lender or any additional Eligible Assignees to become Term Lenders or Revolving Credit Lenders, as applicable, pursuant to a commitment increase and joinder agreement (each, an “Additional Incremental Joinder”). No Lender will be obligated to provide all or any portion of any Incremental Facility and the determination to provide such commitment shall be within the sole and absolute discretion of such Lender. Any failure by a Lender to respond to any such invitation shall not be deemed an acceptance or agreement to provide such Incremental Facility.
(e) If any Term Commitments or Revolving Credit Commitments are added in accordance with this Section 2.16, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Effective Date”) on which and the final allocations of such additional Commitments. The Administrative Agent shall promptly notify the Borrower proposes that and the Additional Commitments shall be effective, which shall be a Business Day and (y) the identity lenders providing such Incremental Facility of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments final allocation thereof and the portion of the Additional Commitment to be provided by each such PersonIncremental Effective Date. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying thatsuch addition, before and after giving effect to the Additional Commitments such increase, (and assuming full utilization thereofA) the requirements of Section 2.20(a)(i), representations and warranties contained in Article 5 and the other Loan Documents are true and correct in all material respects (ivexcept that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and (x) are satisfied, and setting forth the calculation as of the Incremental Cap.Effective Date, except to the extent 103
(cf) On each Additional Commitments Incremental Effective Date with respect to any Additional Date, (i) each Lender or Eligible Assignee which is providing an Incremental Term CommitmentLoan Class (A) shall become a “Term Lender” for all purposes of this Agreement and the other Loan Documents, each Additional Term Lender and (B) shall make an Additional Incremental Term Loan to the Borrower or the applicable Subsidiary Guarantor in a principal amount equal to its Additional such additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (, and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments Incremental Term Loan shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition deemed a “Term Loan” for all purposes of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents and (ii) each Lender or Eligible Assignee which is providing an Incremental Revolving Credit Commitment shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents, with a Revolving Credit Commitment of the applicable Class.
(g) The interest rate applicable to any Incremental Term Loans will be determined by the Borrower and the lenders providing such Incremental Term Loans; provided that (i) in the case of any such Incremental Term Loans denominated in Dollars that are secured by the Collateral on a pari passu basis with the Initial Term Loans in right of payment and with respect to security (other than customary bridge loans) with a final maturity date that is less than 24 months after the Initial Term Loan Maturity Date, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the Initial Term Loans unless the Applicable Margin (and/or, as provided in the proviso below, the Base Rate floor or Term SOFR floor) with respect to the Initial Term Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum (it being agreed that, the relative rate differentials in any pricing grid specified in the Applicable Margin shall continue to be maintained), provided that, unless otherwise agreed by the Borrower in its sole discretion, that any increase in All-In- Rate to any Initial Term Loan due to the application or imposition of an Base Rate floor or Term SOFR floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Term SOFR floor applicable to such Initial Term Loan and (ii) in the case of any such Incremental Term Loans denominated in Dollars that are secured by the Collateral on a pari passu basis with the 2022 Incremental Term B-2 Loans in right of payment and with respect to security (other than customary bridge loans) with a final maturity date that is less than 24 months after the 2022 Incremental Term B-2 Loan Maturity Date, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the 2022 Incremental Term B-2 Loans unless the Applicable Margin (and/or, as provided in the proviso below, the Base Rate floor or Term SOFR floor) with respect to the 2022 Incremental Term B-2 Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum (it being agreed that, the relative rate differentials in any pricing grid specified in the Applicable Margin shall continue to be maintained), provided that, unless otherwise agreed by the Borrower in its sole discretion, that any increase in All-In-Rate to any 2022 Incremental Term B-2 Loan due to the application or imposition of an Base Rate floor or Term SOFR floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Term SOFR floor applicable to such 2022 Incremental Term B-2 Loan.
(h) Any Incremental Facility, if secured, may be necessary or appropriatesecured only by the Collateral (provided that, in the reasonable opinion case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the applicable funds and related assets held in Escrow (and the proceeds thereof) until the time of the release from Escrow of such funds (and may not be secured by any other assets prior to such release)) and rank pari passu or junior with respect to security with the Facilities (and if secured, subject to an Acceptable Intercreditor Agreement (which may be effective (or entered into) only immediately after such release from Escrow referred to herein)) and, if guaranteed, will not be guaranteed by an entity which is not (or does not become) a Loan Party. 104
(i) Except as otherwise specified above, the other terms of any Incremental Facility (including with respect to pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption terms and provisions), shall be on terms and pursuant to documentation to be determined between the Borrower and the lenders providing such Incremental Facility (and for the avoidance of doubt, no consent of the Administrative Agent shall be required except to the extent affecting the rights and duties of, or any fees or other amounts payable to, the Administrative Agent); provided that, at the election of the Borrower, to the extent any more restrictive covenant is added for the benefit of any Incremental Facility (except to the extent only applicable after the latest maturity date of the Facilities), such covenant may also be added for the benefit of all of the Facilities (or, in the case of a financial maintenance covenant, solely for the benefit of the Initial Revolving Credit Facility or other Facility that benefits from a financial maintenance covenant at such time); it being understood and agreed that no consent of the Administrative Agent and/or any Lender shall be required in connection with any amendment adding such covenant or implementing such Incremental Facility. The Borrower shall provide the Administrative Agent prompt written notice of any amendment to effect an Incremental Facility pursuant to this Section 2.16 and the provisions Administrative Agent hereby agrees to (and is directed by each Lender to) acknowledge such amendment as promptly as practicable following such written notice; it being acknowledged and agreed by each Lender that the Administrative Agent, in its capacity as such, shall have no liability with respect to such acknowledgment and each Lender hereby irrevocably waives to the fullest extent permitted by Law any claims with respect to such acknowledgment; provided that, failure to obtain such acknowledgment shall in no way affect the effectiveness of any amendment entered into to effectuate such amendment in accordance with this Section 2.20Section 2.16.
(ej) This Section 2.20 shall supersede The proceeds of any provisions in Section 2.18 or Section 9.02 to Incremental Facility may be used by the contraryBorrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of permitted acquisitions and other Investments and any other use not prohibited by this Agreement.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written So long as no Default or Event of Default has occurred and is continuing or would result therefrom, upon notice to the Administrative Agent elect to seek Agent, at any time after the Closing Date, the Borrower may request Additional Term Commitments or Additional Revolving Credit Commitments (it being understood and agreed that (i) at the election of the Borrower, such additional commitments in respect of any loans shall be implemented through (x) commitments (“Additional the addition of additional new tranches of Term B Loans, Term C Loans or Revolving Commitments”) to increase the Revolving Credit Commitments that may be a separate Class of any Class and/or loans or (y) the implementation of an increase in existing Term Loans of a particular Class or an increase in existing Revolving Credit Commitments of a particular Class and (ii) if the Borrower makes such election, the provisions of this Section 2.14 shall be read in a manner that permits such election to be implemented); provided that the Borrower is only permitted to implement four additional commitments (“Additional Term Commitments”) to increase the aggregate principal amount in respect of any existing Class of Term Loans or to establish one or more new Classes of Term Loansloans under this Section 2.14; provided that:
further that (i) after giving effect to any such addition, the aggregate amount of all Additional Term Commitments and Additional Revolving Credit Commitments that have been added pursuant to this Section 2.14 shall not exceed an amount such that the Incremental Cap;
Consolidated Senior Secured Leverage Ratio does not exceed 3.25 to 1.00 as of the most recently completed period for which the financial statements required by Section 6.01(a) and (b) were required to be delivered after giving effect to such Additional Term Commitments or Additional Revolving Credit Commitments, as applicable, on a Pro Forma Basis (and, in each case, in connection with the incurrence of any Additional Revolving Credit Commitments, assuming a Borrowing of the maximum amount of Loans available under such Additional Revolving Credit Commitments), (ii) any such increase or any new Class addition shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Term Commitments and Additional Revolving Credit Commitments set forth in the preceding clause (i) to this proviso);
, (iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of for the Initial Term B Loans outstanding prior to (unless such proposed incurrence of Additional Term Loan is an Additional Term C Loan, in which case the final maturity date of such Additional Term Loan shall be no earlier than the Maturity Date for the Initial Term C Loans;
), (viiv) the weighted average life to maturity of the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater be no shorter than the then remaining Weighted Average Life weighted average life to maturity of the Initial Term B Loans (unless such Additional Term Loan is an Additional Term C Loan, in which case the weighted average life to maturity of such Additional Term Loan shall be no shorter than the weighted average life to maturity of the Initial Term C Loans), (v) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity of each Class of Term Loans outstanding Date applicable to the Revolving Credit Facility, and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to such proposed incurrence of Maturity Date and such Additional Revolving Credit Commitment shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility, (vi) no Lender shall be required to participate in the Additional Term Loans (it being understood thatCommitments or the Additional Revolving Credit Commitments, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for rate and amortization schedule applicable to the Additional Term Loans Commitments shall be determined by the Borrower and the Additional Term Lenderslenders thereof; provided that in the event that the All-In Yield for interest margins applicable to any such Additional Term Loans is Commitments (other than Additional Term C Commitments) are greater than the All-In Yield interest margins for the Initial Term B Loans by more than 50 basis points, then the Applicable Rate interest margins for the Initial Term B Loans shall be increased to the extent necessary so that the All-In Yield interest margins for such Additional Term Loans is not Commitments are no more than 50 basis points higher greater than the All-In Yield interest margins for the Initial Term B Loans (it being understood that the provisions of this proviso shall not apply to the Initial Term C Loans;
); provided, further, that, in determining the applicable interest rate margins for such Additional Term Commitments and the Initial Term B Loans, (A) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term B Loans or any Additional Term Commitments in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), (B) customary arrangement, structuring or other fees payable by the Borrower to any of the Arrangers (or their respective Affiliates) in connection with the Initial Term B Loans or to one or more arrangers (or their Affiliates) of any Additional Term Commitments and that are not shared with all Lenders providing Additional Term Commitments shall be excluded, and (C) if such Additional Term Commitments include an interest rate floor greater than the interest rate floor applicable to the Initial Term B Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest margins for the Initial Term B Loans shall be required, to the extent an increase in the interest rate floor for the Initial Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest margins for the Initial Term B Loans) applicable to the Initial Term B Loans shall be increased by such amount; and (viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will shall rank pari passu in right of payment and of security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the other Loans. Any Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share may participate on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, or on a less than pro rata basis (but in no event not on a greater than pro rata basis); and
(x) in any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increasedvoluntary or mandatory prepayments hereunder, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and specified in the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other LendersFacility Joinder Agreement.
(b) Each such notice If any Additional Term Commitments or Additional Revolving Credit Commitments are added in accordance with this Section 2.14, the Administrative Agent and the Borrower shall specify (x) determine the effective date (each, an the “Additional Commitments Effective Date”) of such addition. Additional Term Loans may be made, and Additional Revolving Credit Commitments may be provided, by any existing Lender (and each existing Term Lender will have the right, but not an obligation, to make a portion of any Additional Term Loans and each existing Revolving Credit Lender will have the right, but not an obligation, to provide a portion of any Revolving Credit Commitments, in each case on which terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Borrower proposes Administrative Agent) or by any Additional Lender, provided that the Additional Commitments Administrative Agent shall be effective, which shall be a Business Day and have consented (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment such consent not to be provided by each unreasonably withheld) to such PersonLender’s or Additional Lender’s providing such Additional Revolving Credit Commitments if such consent would be required under Section 10.06(b) for an assignment of Revolving Credit Commitments to such Lender or Additional Lender. As a condition precedent to the effectiveness of any Additional Commitmentssuch addition, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (provided that representations and warranties that are qualified by maturity shall be true and correct in all respects) on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects (provided that representations and assuming full utilization thereofwarranties that are qualified by maturity shall be true and correct in all respects) the requirements as of such earlier date, and except that for purposes of this Section 2.20(a)(i2.14(b), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (iva) and (xb), respectively, of Section 6.01, (ii) are satisfiedno Default or Event of Default exists immediately before or immediately after giving effect to such addition, and setting (iii) after giving effect to the making of Additional Term Loans or Additional Revolving Credit Loans, as applicable, and on a Pro Forma Basis (and with respect to any Additional Revolving Credit Loans, in the case of clause (B), assuming the Revolving Credit Facility is fully drawn), the Borrower is in compliance with the covenant set forth the calculation in Section 7.11, as of the Incremental Cap.
most recently completed period for which the financial statements required by Section 6.01(a) and (cb) were required to be delivered. On each Additional Commitments Effective Date with respect to Date, each applicable Lender or other Person which is providing an Additional Term Commitment or an Additional Revolving Credit Commitment (i) in the case of any Additional Revolving Credit Commitment, shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents, (ii) in the case of any Additional Term B Commitment, each Additional Term Lender shall make an Additional Term Loan B Commitment to the Borrower in a principal amount equal to its such Lender’s or Person’s Additional Term B Commitment and shall become a “Term B Lender” and a “Term Lender” for all purposes of this Agreement and the other Loan Documents and (iii) in the case of any Additional Term C Commitment, shall make an Additional Term C Commitment to the Borrower in a principal amount equal to such Lender’s or Person’s Additional Term C Commitment and shall become a “Term C Lender” and a “Term Lender” for all purposes of this Agreement and the other Loan Documents. Any Additional Revolving Credit Loan shall be a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents. The Borrower shall prepay any Revolving Credit Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Credit Commitment (and pay any additional amounts required pursuant to Section 2.163.05) to the extent necessary to keep the outstanding Revolving Credit Loans pro rata across all Classes of ratable with any revised Applicable Revolving Commitments Credit Percentages arising from any nonratable increase in the Revolving Credit Commitments. If there is a new borrowing .
(c) Any other terms of and documentation entered into in respect of any Additional Term B Loans or Additional Term C Loans made or any Additional Revolving Credit Commitments on provided, in each case pursuant to this Section 2.14, shall be consistent with the Term B Loans, Term C Loans or the Revolving Credit Commitments, as the case may be, (including with respect to voluntary and mandatory prepayments), other than as contemplated by Section 2.14(a)(iii), (iv) or (vii) above; provided that such other terms and documentation in respect of any Additional Term B Loans or Additional Term C Loans may be materially different from those of the Term B Loans or the Term C Loans, respectively, to the extent such difference shall be reasonably satisfactory to the Administrative Agent; provided, further, that any Additional Term Loans made or any Additional Revolving Credit Commitments Effective Dateprovided, as applicable, shall be effected pursuant to one or more joinder agreements or amendments (each, an “Additional Facility Joinder Agreement”) executed and delivered by the Borrower, the Revolving Lenders after giving effect Administrative Agent and the applicable Additional Lenders, and to such the extent applicable, the L/C Issuer and the Swing Line Lender. Any Additional Term Loans or Additional Revolving Commitments Credit Commitments, as applicable, made or provided pursuant to this Section 2.14 shall make such Revolving Loans be evidenced by one or more entries in the accounts or records maintained by the Administrative Agent in accordance with the provisions set forth in Section 2.01(b)2.11.
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20.
(e) This Section 2.20 2.14 shall supersede any provisions in Section 2.18 2.13 or Section 9.02 10.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties, if necessary, to provide for terms applicable to each Additional Term B Commitment and/or Additional Revolving Credit Commitment, as the case may be.
Appears in 1 contract
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek (x) commitments (“Additional Revolving Commitments”) to increase the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class of Term Loans or to establish one or more new Classes of Term Loans; provided that:
: (i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
; (ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 (or any lesser amount that the Administrative Agent shall agree to) or any whole multiple of $1,000,000 (or any lesser amount that the Administrative Agent shall agree to) in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
; -89- (iii) no existing Lender shall be required to provide any Additional Commitments;
; (iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) ), whether or not the Financial Performance Covenant would otherwise be tested, as of the last day of the then-applicable Test Period;
; (v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
; (vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differdiffer from the amortization requirements with respect to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans);
; (vii) the interest margins for the Additional Term Loans shall be determined by the Borrower and the Additional Term Lenders; provided that in the event that the All-In Yield for any Additional Term Loans incurred within twelve months after the Closing Date is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
; (viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
; (ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
and -90- (x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or and other terms apply equally for the benefit of all the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof but without netting any cash proceeds thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments, and participations in any outstanding Letters of Credit shall be reallocated such that they are held ratably among the Revolving Lenders. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20.the
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Virtus Investment Partners, Inc.)
Increase in Commitments. (a) The Borrower may by written notice to the Administrative Agent elect to seek request (x) commitments (“Additional Revolving Commitments”) prior to increase the Revolving Termination Date, an increase to the existing Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount establishment of any existing Class of Term Loans or to establish one or more new Classes term loan Commitments (each, an “Incremental Term Loan Commitment”) by an amount not in excess of Term Loans$500,000,000 in the aggregate (for both of clauses (x) and (y)) and not less than $100,000,000 individually. Each such notice shall specify (i) the date (each, an “Increase Effective Date”) on which Borrower proposes that the increased or new Commitments shall be effective, which shall be a date not fewer than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Assignee to whom Borrower proposes any portion of such increased or new Commitments be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the increased or new Commitments may elect or decline, in its sole discretion, to provide such increased or new Commitment.
(b) The increased or new Commitments shall become effective, as of such Increase Effective Date; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed the Incremental Cap;
(ii) any such increase or any new Class shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
(iii) no existing Lender shall be required to provide any Additional Commitments;
(iv) as of each date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each of the conditions set forth in Section 4.02 5.2 shall be satisfied satisfied;
(ii) no Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date;
(Biii) after giving pro forma effect to the borrowings to be made on the Increase Effective Date and to any change in Consolidated EBITDA and any increase in Debt resulting from the consummation of any acquisition permitted by this Agreement concurrently with such borrowings as of the date of the most recent financial statements delivered pursuant to Section 6.1(b) or (c), the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as each of the last day covenants set forth in Section 7.16;
(iv) the Borrower shall make any payments required pursuant to Section 2.20 in connection with any adjustment of the Test Period;Revolving Loans pursuant to Section 2.24(d); and
(v) the final maturity date Borrower 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.
(c) The terms and provisions of any Additional Term Loans made pursuant to the new Commitments shall be no earlier than the Latest Maturity Date applicable as follows:
(i) terms and provisions of Loans made pursuant to each Class of Incremental Term Loans outstanding prior to such proposed incurrence of Additional Loan Commitments (“Incremental Term Loans;
(vi”) shall be, except as otherwise set forth herein or in the Additional Term Loans shall have a Weighted Average Life Increase Joinder, identical to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Tranche B Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional that Incremental Term Loans may differbe part of an existing tranche of Term Loans);
(viiii) all terms and provisions (including maturity date) of Revolving Loans made pursuant to new Commitments shall be identical to the existing Revolving Loans;
(iii) the interest margins weighted average life to maturity of all new Term Loans shall be no shorter than the weighted average life to maturity of the existing Tranche B Term Loans;
(iv) the maturity date of Incremental Term Loans shall not be earlier than the Tranche B Term Loan Maturity Date; and
(v) the Applicable Margins for the Additional new Term Loans shall be determined by the Borrower and the Additional Term applicable new Lenders; provided that in the event provided, however, that the All-In Yield Applicable Margins for any Additional the new Term Loans is shall not be greater than the All-In Yield for the Initial highest Applicable Margins that may, under any circumstances, be payable with respect to Tranche B Term Loans by more than plus 50 basis points, then points (and the Applicable Rate for Margins applicable to the Initial Tranche B Term Loans shall be increased to the extent necessary so that to achieve the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
(viii) (A) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basisforegoing); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term . The increased or new Commitments shall be on terms to be determined, provided that, effected by a joinder agreement (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective DateIncrease Joinder”) on which the Borrower proposes that the Additional Commitments shall be effectiveexecuted by Borrower, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be provided by each such Person. As a condition precedent to the effectiveness of any Additional Commitments, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Lender making such increased or new Commitment, in form and substance satisfactory to each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitmentof them. The Borrower shall prepay Increase Joinder may, without the consent of any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Dateother Lenders, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section 2.202.24.
(d) To the extent the Commitments being increased on the relevant Increase Effective Date are Revolving Commitments, then each of the Revolving Lenders having a Revolving Commitment prior to such Increase Effective Date (the “Pre-Increase Revolving Lenders”) shall assign to any Revolving Lender which is acquiring a new or additional Revolving Commitment on the Increase Effective Date (the “Post-Increase Revolving Lenders”), and such Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in LC Obligations and Swingline Loans outstanding on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in LC Obligations and Swingline Loans will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to such increased Revolving Commitments.
(e) This Section 2.20 shall supersede On any provisions in Section 2.18 or Section 9.02 Increase Effective Date on which new Commitments for Term Loans are effective, subject to the contrarysatisfaction of the foregoing terms and conditions, each Lender of such new Commitment shall make a Term Loan to the Borrower in an amount equal to its new Commitment.
(f) The Loans and Commitments established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from Section 10 hereof and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such class of Term Loans or any such new Commitments.
Appears in 1 contract
Sources: Credit Agreement (Davita Inc)
Increase in Commitments. (a) The Borrower may may, on any Business Day prior to the Termination Date, with the written consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed), increase the aggregate amount of the Commitments by written notice delivering a Commitment Amount Increase Request substantially in the form attached hereto as Exhibit D or in such other form acceptable to the Administrative Agent elect at least five (5) Business Days prior to seek the desired effective date of such increase (xthe "Commitment Amount Increase") commitments identifying an additional Bank (“Additional Revolving Commitments”or additional Commitments for existing Bank(s)) to increase and the Revolving Commitments of any Class and/or (y) commitments (“Additional Term Commitments”) to increase the aggregate principal amount of any existing Class its Commitment (or additional amount of Term Loans or to establish one or more new Classes of Term Loansits Commitment(s)); provided that:
PROVIDED, HOWEVER, that (i) any increase of the aggregate amount of the Commitments to an amount in excess of $600,000,000 will require the approval of all Additional Commitments shall not exceed the Incremental Cap;
Banks, (ii) any such increase or any new Class of the aggregate amount of the Commitments shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that such amount may be not less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the preceding clause (i);
15,000,000, (iii) no existing Lender Default or Event of Default shall have occurred and be required to provide any Additional Commitments;
continuing at the time of the request or the effective date of the Commitment Amount Increase and (iv) as all representations and warranties contained in Section 6 hereof shall be true and correct at the time of each such request and on the effective date of borrowing of any Additional Term Commitments or effectiveness of Additional Revolving Commitments, (A) each such Commitment Amount Increase. The effective date of the conditions set forth in Section 4.02 Commitment Amount Increase shall be satisfied and (B) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant recomputed (assuming the applicable Additional Revolving Commitments established on such date are fully drawn and without netting the cash proceeds of any Additional Term Loans or any Additional Revolving Commitments being so incurred in calculating the Total Net Leverage Ratio) as of the last day of the Test Period;
(v) the final maturity date of any Additional Term Loans shall be no earlier than the Latest Maturity Date applicable to each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans;
(vi) the Additional Term Loans shall have a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of each Class of Term Loans outstanding prior to such proposed incurrence of Additional Term Loans (it being understood that, subject to the foregoing requirements of this clause (vi), the amortization requirements with respect to any Additional Term Loans may differ);
(vii) the interest margins for the Additional Term Loans shall be determined agreed upon by the Borrower and the Additional Term Lenders; provided Administrative Agent. Upon the effectiveness thereof, the new Bank(s) (or, if applicable, existing Bank(s)) shall advance Loans in an amount sufficient such that in after giving effect to its Loans each Bank shall have outstanding its Percentage of Loans. It shall be a condition to such effectiveness that (i) if any Eurocurrency Loans are outstanding on the event that the All-In Yield for any Additional Term Loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis pointsdate of such effectiveness, then the Applicable Rate for the Initial Term such Eurocurrency Loans shall be increased deemed to be prepaid on such date and the Borrower shall pay any amounts owing to the extent necessary so that the All-In Yield for such Additional Term Loans is not more than 50 basis points higher than the All-In Yield for the Initial Term Loans;
Banks pursuant to Section 1.12 hereof and (viii) (Aii) the security interest and guaranties benefiting the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will rank pari passu in right of payment and security with the existing Facilities, (B) no Person shall guarantee the obligations with respect to the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) unless such Person is a Subsidiary Loan Party and (C) the Additional Term Loans and/or Additional Revolving Commitments (and advances of credit thereunder) will not be secured by any property that does not constitute Collateral under the existing Facilities;
(ix) any Additional Term Loans shall share on a pro rata basis in any voluntary and mandatory prepayments with the Initial Term Loans or, if agreed to by the Additional Term Lenders, on a less than pro rata basis (but in no event on a greater than pro rata basis); and
(x) any Additional Revolving Commitment shall have the same maturity dates and be on the same pricing (excluding upfront fees and other fees of the type excluded from the determination of “All-In Yield”) and other terms and pursuant to the definitive documentation applicable to the Revolving Commitments of such Class that is being increased, and any Additional Term Loans and Additional Term Commitments shall be on terms to be determined, provided that, (A) the final maturity, Weighted Average Life to Maturity, pricing, rate floors, discounts, fees and optional and mandatory prepayment provisions applicable to such Additional Term Loans shall be as agreed between the Borrower and the Additional Term Lenders but subject to the foregoing clauses (v), (vi), (vii) and (ix) and (B) the covenants and other terms applicable to such Additional Term Loans (excluding those terms described in the immediately preceding clause (A)), which shall be as agreed between the Borrower and the Additional Term Lenders, shall not be materially more favorable (when taken as a whole) to the Additional Term Lenders than those applicable to have terminated any Class of Term Loans then outstanding under this Agreement (as determined by the Borrower in good faith), except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then applicable to any Class of Term Loans or such covenants or other terms apply equally for the benefit of the other Lenders.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a Business Day and (y) the identity of the Persons (each of which shall be an Eligible Assignee (for this purpose treating a Lender of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitments pursuant to Section 1.13 hereof. The Borrower agrees to pay any reasonable expenses of the Administrative Agent relating to any Commitment to be provided by each such PersonAmount Increase. As a condition precedent to Promptly upon the effectiveness of any Additional CommitmentsCommitment Amount Increase, the Borrower shall deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to the Additional Commitments (and assuming full utilization thereof) the requirements of Section 2.20(a)(i), (iv) and (x) are satisfied, and setting forth the calculation of the Incremental Cap.
(c) On each Additional Commitments Effective Date with respect to any Additional Term Commitment, each Additional Term Lender shall make an Additional Term Loan to the Borrower in a principal amount equal to its Additional Term Commitment. The Borrower shall prepay any Revolving Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Revolving Commitment (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans pro rata across all Classes of Revolving Commitments arising from any nonratable increase in the Revolving Commitments. If there is a new borrowing of Revolving Commitments on such Additional Commitments Effective Date, the Revolving Lenders after giving effect to such Additional Revolving Commitments shall make such Revolving Loans in accordance with Section 2.01(b).
(d) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by the Persons providing the Additional Commitments (and the other Persons specified in the definition of Additional Credit Extension Amendment but no other existing Lender), and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, if requested by any new Bank, shall execute and deliver new Notes to effect the provisions of this Section 2.20.
(e) This Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 each requesting Bank. Notwithstanding anything herein to the contrary, no Bank shall have any obligation to increase its Commitment and no Bank's Commitment shall be increased without its consent thereto, and each Bank may at its option, unconditionally and without cause, decline to increase its Commitment.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (Jones Lang Lasalle Inc)