Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel. (b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee). (c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary. (d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 5 contracts
Sources: Term Loan Agreement (Potlatchdeltic Corp), Term Loan Agreement (Potlatchdeltic Corp), Term Loan Agreement (Potlatchdeltic Corp)
Increase in Commitments. (ai) Provided there exists no Default (and no Default would result therefrom)WPZ shall have the option, upon notice without the consent of the Lenders, from time to time to cause one or more increases in the Administrative Borrower Aggregate Commitments by adding, subject to the prior approval of the Administrative Agent and the Issuing Banks (which shall promptly notify the Lenderssuch approval not to be unreasonably withheld), to this Agreement one or more financial institutions as Lenders (collectively, the Borrowers may from time to time, request a new term loan (an “Incremental Term LoanNew Lenders”) in an aggregate amount for all or by allowing one or more Lenders to increase their respective Commitments; provided however that: (A) prior to and after giving effect to the increase, no Default or Event of Default shall have occurred hereunder and be continuing, (B) no such Incremental Term Loans not increase shall cause the Aggregate Commitments to exceed $150,000,000; provided2,400,000,000, however(C) no Lender’s Commitment shall be increased without such Lender’s consent, that (D) such increase shall not result in the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits increase of any additional guaranties or collateral Borrower Sublimit and (iiE) such increase shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in evidenced by a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an commitment increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory reasonably acceptable to the Administrative Agent and its counselexecuted by WPZ, the Administrative Agent, the New Lenders, if any, and Lenders increasing their Commitments, if any, and which shall indicate the amount and allocation of such increase in the Aggregate Commitments and the effective date of such increase (the “Increase Effective Date”). Each financial institution that becomes a New Lender pursuant to this Section by the execution and delivery to the Administrative Agent of the applicable commitment increase agreement shall be a “Lender” for all purposes under this Agreement on the applicable Increase Effective Date. The Borrowers shall borrow and prepay Loans on each Increase Effective Date (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Loans of each Lender ratable with such Lender’s revised Applicable Percentage after giving effect to any nonratable increase in the Aggregate Commitments under this Section.
(bii) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries each increase pursuant to subsection (ac)(i) above, the Borrowers WPZ shall deliver to the Administrative Agent each of Agent, to the extent requested by the Administrative Agent, the following in form and substance reasonably satisfactory to the Administrative Agent: :
(1A) a certificate of each Loan Party dated as of the Incremental Term Loan Increase Effective Date (in sufficient copies for each Lender) Date, signed by a Responsible Officer of such Loan Party (i) the General Partner certifying and attaching that each of the resolutions adopted by such Loan Party approving or consenting conditions to such increase, increase set forth in this Section 2.01(c) shall have occurred and (ii) certifying been complied with and that, before and after giving effect to such Incremental Term Loanincrease, (A1) the representations and warranties (other than Added L/C Representations) contained in Article V this Agreement and the other Loan Documents are true and correct in all material respects on and as of the Increase Effective Date after giving effect to such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects as of such earlier date, and except (2) no Default or Event of Default exists and is continuing;
(B) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officer of the General Partner as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of such Responsible Officer thereof authorized to act as a Responsible Officer in connection with such increase agreement, and such documents and certifications as the Administrative Agent may reasonably require to evidence that for purposes WPZ is validly existing and in good standing in its jurisdiction of this Section 2.12organization; and
(C) a favorable customary opinion of counsel to WPZ, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed relating to refer such increase agreement, addressed to the most recent financial statements furnished pursuant Administrative Agent and each Lender if requested by the Administrative Agent or such Lenders.
(iii) Any Borrower shall have the option, by agreement with any Lender to subsections (aA) and (b)after consultation with the Administrative Agent, respectively, of Section 6.01, cause such Lender to become or cease to be an Issuing Bank under this Agreement and (B) no Default exists; (2) a statement increase or decrease the Letter of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Credit Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Lender as an Issuing Bank.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 4 contracts
Sources: Credit Agreement (Transcontinental Gas Pipe Line Company, LLC), Credit Agreement (Northwest Pipeline Gp), Credit Agreement (Williams Companies Inc)
Increase in Commitments. (a) Provided there exists no Default (The Company may at any time and no Default would result therefrom)from time to time, upon by written notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify deliver a copy to the applicable Lenders) executed by the Company and one or more financial institutions (any such financial institution referred to in this Section being called an “Increasing Lender”), which may include any Lender, cause new Global Tranche Commitments or US Tranche Commitments to be extended by the Borrowers Increasing Lenders (or cause the existing Global Tranche Commitments or US Tranche Commitments of the Increasing Lenders to be increased, as the case may from time to time, request a new term loan (an “Incremental Term Loan”be) in an amount for each Increasing Lender (which shall not be less than US$5,000,000) set forth in such notice; provided that (i) the new Commitments and increases in existing Commitments pursuant to this paragraph shall not be greater than US$500,000,000 in the aggregate during the term of this Agreement and shall not be less than US$10,000,000 (or any portion of such US$500,000,000 aggregate amount remaining unused) for all any such Incremental Term Loans increase, (ii) each Increasing Lender, if not already a Lender hereunder, shall be subject to exceed $150,000,000; providedthe approval of the Administrative Agent and each LC Issuer (which approval shall not be unreasonably withheld) and (iii) each Increasing Lender, howeverif not already a Lender hereunder, that the Borrowers shall have delivered become a party to this Agreement by completing and delivering to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be duly executed accession agreement in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
the Company (b) If an “Accession Agreement”). New Commitments and increases in Commitments shall become effective on the Commitments are increased date specified in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries applicable notices delivered pursuant to subsection (a) abovethis paragraph. Upon the effectiveness of any Accession Agreement to which any Increasing Lender is a party, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying such Increasing Lender shall thereafter be deemed to be a party to this Agreement and attaching the resolutions adopted by such Loan Party approving or consenting shall be entitled to such increaseall rights, benefits and privileges accorded a Lender hereunder and subject to all obligations of a Lender hereunder and (ii) certifying thatSchedule 2.01 shall be deemed to have been amended to reflect the Commitment or Commitments of such Increasing Lender as provided in such Accession Agreement. Notwithstanding the foregoing, before no increase in the Commitments (or in the Commitment of any Lender) pursuant to this paragraph shall become effective unless (i) the Administrative Agent shall have received documents consistent with those delivered under Section 4.02(b) and after (c), giving effect to such Incremental Term Loan, increase and (Aii) on the representations and warranties contained in Article V and the other Loan Documents are true and correct as effective date of such earlier date, and except that for purposes of this Section 2.12increase, the representations and warranties contained conditions set forth in subsections (aSections 4.01(b) and (bc) of Section 5.01 shall be satisfied (with all references in such paragraphs to a Credit Event being deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect be references to such increase, it is bound by all terms of this Agreement ) and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify have received a certificate to evidence, guarantee or secure that effect dated such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement date and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion executed by a Financial Officer of the Administrative Agent, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term LoanCompany.
Appears in 4 contracts
Sources: Credit Agreement (Hartford Financial Services Group, Inc.), Credit Agreement (Hartford Financial Services Group, Inc.), Credit Agreement (Hartford Financial Services Group Inc/De)
Increase in Commitments. The Company shall have the right at any time to increase the aggregate Commitments hereunder to the extent that the sum of the aggregate Commitments hereunder do not exceed $2,750,000,000 by adding to this Agreement one or more other banks (awhich may include any Bank, with the consent of such Bank, each such bank an “Additional Bank”) Provided there exists no Default (and no Default would result therefrom), upon notice from with the Administrative Borrower to approval of the Administrative Agent (which approval shall promptly notify the Lendersnot be unreasonably withheld), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers each of which Additional Banks shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept entered into an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Company and the Administrative Agent pursuant to which such Additional Bank shall undertake a Commitment (if any such Additional Bank is a Bank, its Commitment shall be in addition to such Bank’s Commitment hereunder) which such Commitment shall be in an amount at least equal to $10,000,000 or a larger multiple of $1,000,000, and its counsel.upon the effectiveness of such agreement (the date of the effectiveness of any such agreement being hereinafter referred to as the “Increased Commitment Date”) such Additional Bank shall thereupon become a “Bank” for all purposes of this Agreement. Notwithstanding the foregoing, the increase in the aggregate Commitments hereunder pursuant to this Section 2.11 shall not be effective unless:
(bi) If the Commitments are increased Company shall have given the Administrative Agent notice of any such increase at least 3 Business Days prior to any such Increased Commitment Date;
(ii) no Default or Event of Default shall have occurred and be continuing as of the date of the notice referred to in the foregoing clause (i) or on the Increased Commitment Date; and
(iii) if any Syndicated Loan shall be outstanding hereunder, the Company shall have borrowed from each of the Additional Banks, and the Additional Banks shall have made, Syndicated Loans to the Company (in the case of Syndicated Eurodollar Loans, with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), and (notwithstanding the provisions of Section 4.02 hereof requiring that borrowings and prepayments be made ratably in accordance with the principal amounts of the Syndicated Loans held by the Banks) the Company shall have prepaid Syndicated Loans held by the other Banks in such amounts as may be necessary, so that after giving effect to such Loans and prepayments, the Syndicated Loans (and Interest Period(s) of Syndicated Eurodollar Loan(s)) shall be held by the Banks pro rata in accordance with the respective amounts of their Commitments (as so increased). Promptly following any increase of Commitments pursuant to this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended provide notice thereof to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Banks.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Motorola Solutions, Inc.), Revolving Credit Agreement (Motorola Solutions, Inc.), Revolving Credit Agreement (Motorola Solutions, Inc.)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon Upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)Agent, the Borrowers may from time Borrower shall have the right to time, request increase the Commitments or establish a new term loan (an “Incremental Term Loan”) credit facility under this Agreement from time to time in an aggregate principal amount for all such Incremental Term Loans not to exceed the sum of (x) $150,000,000100,000,000 and (y) the amount of any voluntary prepayments of the Loans pursuant to Section 2.11; provided, however, provided that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder request for an increase shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, 25,000,000 and (ii) certifying thatno such increase shall become effective (x) if an Event of Default under Section 7.01(a), before and (b), (h) or (i) then exists or would exist immediately after giving effect to such Incremental Term Loan, thereto and (Ay) the unless all representations and warranties contained in Article V III are correct in all material respects as of the date of such increase (except to the extent that any such representation or warranty is qualified by materiality, in which case such representations and the other Loan Documents are warranties shall be true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and all respects).
(b) Such increased Commitments and/or increased Loans may be provided by existing Lenders or any other Person that constitutes an Eligible Assignee who becomes a Lender pursuant to a joinder agreement in substantially the form of Exhibit G; provided that the Administrative Agent shall have consented to the joinder of any such Person to the extent such consent would be required for an assignment to such Person pursuant to Section 5.01 10.04. No Lender shall be deemed obligated to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each provide any such increased Commitment or Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, unless it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)agrees.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without Without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents may be amended as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders Agent and the BorrowersBorrower, to implement effect the provisions of this Section 2.21. This Section shall supersede any provisions in Section 10.02 to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loancontrary.
Appears in 3 contracts
Sources: Loan Agreement (Cooper Companies, Inc.), Loan Agreement (Cooper Companies, Inc.), Loan Agreement (Cooper Companies Inc)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon Upon written notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers Borrower may from time to timerequest: additional Term Commitments and/or additional Revolving Credit Commitments (each, request a new term loan (an “Incremental Term LoanFacility”) denominated in any currency agreed to by the lenders providing such Incremental Facility pursuant to any Incremental Joinder; provided that after giving effect to any such addition, the aggregate amount of all additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.16(a) shall not exceed the Incremental Cap. Each such addition under this Section 2.16(a) shall be in an aggregate amount for all of $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
(b) Any loans made in respect of any such additional Term Commitments (the “Incremental Term Loans not to exceed $150,000,000; providedLoans”) may be made, howeverat the option of the Borrower, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan either by (i) shall rank pari passu in right of payment increasing the Initial Term Loans with the same terms (including pricing) as the existing Initial Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide creating a new Commitment pursuant to this Section 2.12 tranche of terms loans (an “Incremental Term Loan CommitmentClass”); provided that any Incremental Term Loan Class (A)(x) in the case of any Incremental Term Loans 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, shall not mature prior to the stated Maturity Date applicable to the latest maturing Class of Term Loans on the date of incurrence of such Incremental Term Loans and (y) in the case of any Incremental Term Loans that are secured by a Lien that is junior to the Initial Term Loans in right of payment or with respect to security or that are unsecured, shall not mature prior to the date that is ninety-one (91) days following the stated Maturity Date applicable to the latest maturing Class of Term Loans on the date of incurrence of such Incremental Term Loans, (B) the Weighted Average Life to Maturity of any Incremental Term Loan Class shall be no less than the Weighted Average Life to Maturity of such latest maturing Class of Term Loans, (C) any Incremental Term Loans secured by the Collateral on a pari passu basis with the Initial Term Loans in right of payment and with respect to security may share on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) in any mandatory or voluntary prepayments with the then outstanding Term Loans and (D) any Incremental Term Loans that are secured by a Lien that is junior to the Initial Term Loans in right of payment or with respect to security or that are unsecured may not share in any mandatory or voluntary prepayments with the then outstanding Term Loans.
(c) 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 such Incremental Revolving Facility shall be no earlier than the final maturity date of the Initial Revolving Credit Facility, (ii) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the final maturity date of the Initial Revolving Credit Facility and (iii) any Incremental Revolving Facility may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro basis) in any reduction or termination as compared to earlier maturing Revolving Credit Commitments or (y) increasing any Class of Revolving Credit Commitments (the “Incremental Revolving Credit Commitments”) shallwith the same terms as such existing Class of Revolving Credit Commitments (it being understood that, in connection therewithif required to consummate an Incremental Revolving Facility, deliver the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Facility being increased may be increased for all Revolving Lenders of the Revolving Credit Facility being increased, but additional upfront or similar fees may be payable to the Administrative Agent Lenders participating in the Incremental Revolving Credit Commitments without any requirement to pay such amounts to any existing Revolving Lenders).
(d) The Borrower may invite any Lender or any additional Eligible Assignees to become Term Lenders or Revolving Credit Lenders, as applicable, pursuant to a new commitment increase and joinder agreement in form and substance reasonably satisfactory to the Administrative Agent (each, an “Incremental Joinder”). No Lender will be obligated to provide all or any portion of any Incremental Facility and its counselthe 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.
(be) If the any Term Commitments or Revolving Credit Commitments are increased added in accordance with this SectionSection 2.16, the Administrative Agent and the Borrowers Borrower shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation allocations of such Incremental Term Loanadditional Commitments. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders lenders providing such Incremental Facility of the final allocation of such Incremental Term Loan thereof and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocationDate. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying thataddition, before and after giving effect to such Incremental Term Loanincrease, (i) (A) the representations and warranties contained in Article V 5 and the other Loan Documents are shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the Incremental Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except (B) no Event of Default shall exist after giving effect to such addition; provided that notwithstanding anything to the contrary in this Section 2.16 or in any other provisions of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Transaction, at the option of the Borrower, (1) the conditions to the Incremental Effective Date shall be subject to the LCT Provisions, (2) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Effective Date shall be the Specified Representations and (3) no Specified Event of Default shall exist on the Incremental Effective Date).
(f) On each Incremental Effective Date, (i) each Lender or Eligible Assignee which is providing an Incremental Term Loan Class (A) shall become a “Term Lender” for all purposes of this Section 2.12, Agreement and the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01other Loan Documents, and (B) no Default exists; (2) shall make an Incremental Term Loan to the Borrower in a statement principal amount equal to such additional Term Commitment, and such Incremental Term Loan shall be deemed a “Term Loan” for all purposes of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it (ii) each Lender or Eligible Assignee which is bound by providing an Incremental Revolving Credit Commitment shall become a “Revolving Credit Lender” for all terms purposes of this Agreement and the other Loan Documents; (3) if , with a Revolving Credit Commitment of the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Class.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(dg) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary interest rate applicable to evidence such any Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall Loans will be determined by the Borrowers Borrower and the Lenders. Additionallylenders providing such Incremental Term Loans; provided that in the case of any such Incremental Term Loans secured by the Collateral on a pari passu basis with the Initial Term Loans in right of payment and with respect to security, the BorrowersAll-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, Guarantors as provided in the proviso below, the Base Rate floor or Eurocurrency Rate floor) with respect to the Initial Term Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum, provided that, unless otherwise agreed by the Borrower in its sole discretion, that any increase in All-In-Rate to any Initial Term Loan due to the application or imposition of an Base Rate floor or Eurocurrency Rate floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Eurocurrency Rate floor applicable to such Initial Term Loan.
(h) Any Incremental Facility may be secured only by the Collateral (provided that, in the case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the applicable funds and each Lender shall execute related assets held in Escrow (and deliver to Administrative Agent 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)) or may be unsecured, and will not be guaranteed by an entity which is not (or does not become) a Loan Party.
(i) Except as otherwise specified above (including with respect to margin, pricing, maturity and/or fees), the other terms of any Incremental Facility, shall be on terms and pursuant to documentation as to be determined between the Borrower and the lenders providing such Incremental Facility than the terms of this Agreement are to the Lenders; provided, that to the extent such terms and documentation are more favorable to the lenders providing such Incremental Facility (except to the extent permitted by clauses (b), (c) and (g) above), such terms shall be reasonably satisfactory to the Administrative Agent shall reasonably specify (except for covenants or other provisions applicable only to evidence, guarantee or secure such Incremental Term Loan. The the periods after the latest maturity date of all of the existing Facilities) (it being understood that if any financial maintenance covenant is added for the benefit of (A) any Incremental Term Loan AmendmentClass, without such financial maintenance covenant (except to the extent only applicable after the maturity date of the Initial Term Facility) may also be added for the benefit of all of the Facilities or (B) any Incremental Revolving Credit Commitments, such financial maintenance covenant (except to the extent only applicable after the maturity date of the Initial Revolving Credit Facility) may also added for the benefit of the Initial Revolving Credit Facility; it being understood and agreed that in each such case of clauses (A) and (B), no consent of any other Lender, may effect Lender shall be required in connection with any amendment adding such amendments to this Agreement financial maintenance covenant and the other Loan Documents Administrative Agent hereby agrees to acknowledge such amendment as may be necessary or appropriatepromptly as possible, and in any case, within three (3) Business Days of written request by the reasonable opinion of Borrower; 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 Lenders fullest extent permitted by Law any claims with respect to such acknowledgment.
(j) The proceeds of any Incremental Facility may be used by the Borrower and the Borrowers, to implement to terms of the Incremental Term Loanits Subsidiaries for working capital and other general corporate purposes, including amortization, pricing, maturity, the financing of permitted acquisitions and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders Investments and the Borrowers in connection with the establishment of such Incremental Term Loanany other use not prohibited by this Agreement.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers Alcoa may from time to time, request by written notice to the Administrative Agent, executed by Alcoa and one or more financial institutions (any such financial institution referred to in this Section being called a new term loan “Prospective Lender”), which may include any Lender, cause the Commitments of the Prospective Lenders to be increased (an “Incremental Term Loan”or cause Commitments to be extended by the Prospective Lenders, as the case may be) in an aggregate amount for all each Prospective Lender set forth in such Incremental Term Loans not to exceed $150,000,000notice; provided, however, that (i) the Borrowers amount of any such increase in the Commitments shall have delivered be no less than $25,000,000, (ii) the sum of the aggregate amount of increases in Commitments under this Section 2.20, during the term of this Agreement, shall not exceed $500,000,000, (iii) each Prospective Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and (iv) each Prospective Lender, if not already a Lender hereunder, shall become a party to this Agreement by completing and delivering to the Administrative Agent a Pro Forma Compliance Certificate demonstrating thatduly executed Accession Agreement. Increases in Commitments and new Commitments created pursuant to this Section shall become effective (A) in the case of Prospective Lenders already parties hereto, upon giving effect on the date specified in the notice delivered pursuant to this Section and (B) in the case of Prospective Lenders not already parties hereunder, on the effective date of the Accession Agreement. Upon the effectiveness of any Accession Agreement to which any Prospective Lender is a Pro Forma Basis to such Incremental Term Loanparty, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) such Prospective Lender shall rank pari passu in right of payment with the existing Term Loans thereafter be deemed to be a party to this Agreement and shall have the same be entitled to all rights, benefits and privileges accorded a Lender hereunder and subject to all obligations of any additional guaranties or collateral a Lender hereunder and (ii) Schedule 2.01(a) shall be treated substantially deemed to have been amended to reflect the same Commitment of the additional Lender as (and provided in any event no more favorably than) such Accession Agreement. Upon the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount effectiveness of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 in the Commitment of a Lender already a party hereunder, Schedule 2.01(a) shall be deemed to have been amended to reflect the increased Commitment of such Lender. Notwithstanding the foregoing, no increase in the aggregate Commitments (or in the Commitment of any Lender) shall become effective under this Section unless it specifically consents (i) the Administrative Agent shall have received documents consistent with those delivered under paragraphs (a) and (c) of Section 4.01 as to the corporate power and authority of Alcoa to borrow hereunder after giving effect to such increase and (ii) on the date of such increase, the conditions set forth in writingparagraphs (b) and (c) of Section 4.02 shall be satisfied (with all references in such paragraphs to a Borrowing being deemed to be references to such increase) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of Alcoa. Any Lender or Eligible Assignee agreeing to Following any increase its of a Lender’s Commitment or provide any extension of a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shallparagraph, in connection therewith, deliver any Loans outstanding prior to the Administrative Agent a effectiveness of such increase or extension shall continue outstanding until the ends of the respective Interests Periods applicable thereto, and shall then be repaid or refinanced with new commitment agreement in form and substance satisfactory Loans made pursuant to Section 2.01; provided that notwithstanding anything to the Administrative Agent and its counsel.
(b) If the Commitments are increased contrary in accordance with this SectionAgreement, the Administrative Agent and conditions to borrowing set forth in Section 4.02 shall not apply to such new Loans to the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders extent they are in a principal amount not greater than that of the final allocation of such Incremental Term Loan and Loans being refinanced. Notwithstanding anything to the Incremental Term Loan Effective Date and Schedule 2.01 hereto contrary in this Agreement, no Lender shall be deemed amended required to reflect such increase and final allocation. As be a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Prospective Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Alcoa Inc), Revolving Credit Agreement (Alcoa Inc), Revolving Credit Agreement (Alcoa Inc)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon by written notice from the Administrative Borrower to the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity Date, request on one or more occasions, up to three in the aggregate, Incremental Term Loan Commitments from one or more Incremental Term Lenders, (which shall promptly notify may or may not include any existing Lender (each of which may be entitled to agree or decline to participate in its sole discretion if so offered the Lendersopportunity to do so), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan sum of (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and $50,000,000 plus (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturityan unlimited amount, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shallso long as, in connection therewiththe case of this clause (ii), deliver after giving pro forma effect to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation Borrowing of such Incremental Term Loan and the application of proceeds therefrom (assuming all such Incremental Term Loan Effective Date Commitments were fully drawn and Schedule 2.01 hereto without “netting” the cash proceeds of any Incremental Term Loans, and after giving pro forma effect to any Permitted Acquisition, Investment or other transaction consummated in connection therewith), the Leverage Ratio shall not exceed 2.50:1.00; provided, that each Incremental Term Lender, if not already a Lender hereunder, shall be deemed amended subject to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to approval of the Administrative Agent each of in its discretion (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as amount of the Incremental Term Loan Effective Date Commitments being requested (which shall be in sufficient copies for each Lender) signed by minimum increments of $1,000,000 and a Responsible Officer minimum amount of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase$5,000,000), and (ii) certifying that, before and after giving effect to the date on which such Incremental Term Loan, Loan Commitments are requested to become effective (A) which shall not be less than 15 days nor more than 60 days after the representations and warranties contained in Article V and the other Loan Documents are true and correct as date of such earlier datenotice, and except that for purposes of this Section 2.12, unless otherwise agreed to by the representations and warranties contained in subsections (aAdministrative Agent) and (biii) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each whether such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect Commitments are to such increase; be Term Commitments or commitments to make term loans with terms different from the Term Loans (4) if the Incremental “Other Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative feeLoans”).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(db) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which may be entitled to agree or decline to have it be guaranteed participate in its sole discretion if so offered the opportunity to do so) and secured by the other Loan Documents (the “Persons additional banks, financial institutions and other institutional lenders who will become Incremental Term Loan Amendment”), Lenders in connection therewith. The Borrower and all Lenders not providing the each Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to the Administrative Agent any an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure evidence the Incremental Term Loan Commitment of such Incremental Term LoanLender. The Each Incremental Term Loan AmendmentAssumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided, that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Closing Date Term Loans, and provided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 0.50% the sum of (A) the margin then in effect for Term Loans that are Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee paid on the Closing Date in respect of the Term Loans (the amount of such excess above 0.50% being referred to herein as the “Yield Differential”), then the Applicable Loan Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive an upfront fee (other than a customary arrangement, underwriting or structuring fee or other similar fee) directly or indirectly from the Borrower or any of its Subsidiaries, the amount of such upfront fee divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Incremental Term Loan Assumption Agreement to the extent not consistent with the terms applicable to the Term Loans hereunder shall otherwise be reasonably satisfactory to the Administrative Agent; and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such covenants, events of default, representations and warranties, and other rights and provisions so long as such Other Term Loans remain outstanding and such additional covenants, events of default, representations and warranties, and other rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or such other joinder agreement or amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and any other joinder agreement or amendment may without the consent of any the other Lender, may Lenders hereto effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to effectuate the provisions of this Section 2.15, and, for the avoidance of doubt, this Section 2.15(b) shall supersede any provisions to the contrary in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Incremental Term Loans shall rank pari passu in rights of payment, prepayment, voting, security, and lien priorities with the initial Term Loans, will be secured by the Collateral and shall be guaranteed by the Subsidiary Guarantors.
(d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.15 unless (i) on the date of such effectiveness, the Lenders conditions set forth in Section 4.02 shall be satisfied (or waived) and the Borrowers, Administrative Agent shall have received a certificate to implement to terms that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation substantially consistent with those delivered on the Closing Date, and (iii) the Credit Parties and their Subsidiaries would be in compliance on a pro forma basis (assuming all such Incremental Term Loan, including amortization, pricing, maturityLoan Commitments were fully drawn and without “netting” the cash proceeds of any Incremental Term Loans, and giving pro forma effect to any Permitted Acquisition or other transaction consummated in connection therewith) with a Leverage Ratio that does not exceed 0.25 to 1.00 less than the Leverage Ratio that is actually provided for in Section 7.07(a) at the time of such other technical amendments as may Borrowing.
(e) Both immediately before and immediately after giving effect to any Incremental Term Loan Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be necessary continuing or appropriate would exist after giving effect thereto and (B) the representations and warranties contained herein and in the reasonable opinion other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the Administrative Agentsame extent as though made on and as of that date, except to the Lenders extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such earlier date; provided that, notwithstanding anything to the Borrowers contrary in connection with this Section 2.15 or in any other provision of any Loan Document, if the establishment proceeds of any Incremental Term Loan are being used to finance a Limited Condition Acquisition (i) no Event of Default under Section 8.01(a) or (i) exists or would result from the incurrence of such Incremental Term Loans, and (ii) the representations and warranties shall be limited to (x) the representation and warranty that the Loans incurred pursuant to this Agreement are senior Indebtedness of the Borrower and (y) the Specified Representations, which shall be true and correct both at the time of signing of the relevant acquisition or similar agreement and at the time of the incurrence such Incremental Term Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may, with the Borrower’s prior written consent, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis, and the Borrower agrees that Section 3.02 shall apply to any conversion of Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.12(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
Appears in 3 contracts
Sources: Credit Agreement (DigitalOcean Holdings, Inc.), Second Amended and Restated Credit Agreement (DigitalOcean Holdings, Inc.), Second Amended and Restated Credit Agreement (DigitalOcean Holdings, Inc.)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon by written notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to timeAgent, request a new term loan to effect one or more increases in the aggregate amount of the Commitments (an the “Incremental Term LoanCommitments”) in an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, (i) an amount such that the Borrowers shall have delivered Senior Secured Leverage Ratio, as of the date of the effectiveness of any such Incremental Commitments, would be equal to the Administrative Agent a Pro Forma Compliance Certificate demonstrating thator less than 3.50:1.00, upon giving effect calculated on a Pro Forma Basis to (treating any such proposed Incremental Commitments as fully drawn and the Loans thereunder outstanding) (provided that any proceeds of such Incremental Commitments and any proceeds of any substantially simultaneous incurrence of Indebtedness shall not be netted from Consolidated Senior Secured Indebtedness for purposes of calculating the Senior Secured Leverage Ratio) plus (ii) $100,000,000 (less the aggregate principal amount of all loans incurred after the Second Amendment and Restatement Date pursuant to Section 2.18 of the Term LoanLoan Facility (or other “incremental” provisions of the Term Loan Facility). For the avoidance of doubt, the Loan Parties would Borrower may establish Incremental Commitments under this Section 2.20 in reliance on Section 2.20(a)(i) to the extent permitted prior to using Section 2.20(a)(ii). Notwithstanding the foregoing, if the Borrower has not included in such notice to the Administrative Agent for any Incremental Commitments an explicit election to establish such Incremental Commitments pursuant to Section 2.20(a)(i) or Section 2.20(a)(ii), then the Borrower shall be in compliance with deemed to have elected to establish such Incremental Commitments under Section 2.20(a)(i) to the financial covenants extent such Incremental Commitments are permitted to be incurred under such clause. Upon the receipt of such request by the Agent, the Agent shall deliver a copy thereof to each Lender. Such notice shall set forth in Section 6.10; and provided further that any Term Loan the amount of the requested Incremental Commitments (which shall be (i) shall rank pari passu in right minimum increments of payment with the existing Term Loans $1,000,000 and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 25,000,000 or (ii) equal to the remaining amount available for Incremental Commitments) and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a date on which such increase is requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, effective. The Incremental Commitments may be made by any existing Lender (provided that no existing Lender shall have any obligation to provide any Incremental Commitment and none of the Borrower or its Affiliates has any obligation to offer any existing Lender the right to provide any Incremental Commitment) or by any other bank or other financial institution that is willing to provide Incremental Commitments (any such other bank or other financial institution, an “Additional Lender”); provided that each Additional Lender, if not already a Lender hereunder, shall be obligated and/or required subject to accept an increase in the approval of the Agent, the Swingline Lender and the Issuing Lender (which approvals shall not be unreasonably withheld) and the Borrower and each Additional Lender shall execute all such documentation as the Agent shall reasonably specify to evidence its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any and/or its status as a Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counselhereunder.
(b) If Each of the Commitments parties hereto hereby agrees that the Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any Incremental Commitments, the outstanding Revolving Loans (if any) are increased held by the Lenders in accordance with this Section, their new Applicable Percentages. This may be accomplished at the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders discretion of the final allocation of such Incremental Term Loan and Agent, following consultation with the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increaseBorrower, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching by requiring the resolutions adopted by such Loan Party approving or consenting outstanding Revolving Loans to such increasebe prepaid with the proceeds of a new Borrowing, and (ii) certifying thatby causing existing Lenders to assign portions of their outstanding Revolving Loans to Lenders providing the Incremental Commitments and the Additional Lenders, before and or (iii) by any combination of the foregoing. Any prepayment or assignment described in this paragraph (b) shall be subject to Section 2.15, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no Incremental Commitments or addition of a new Lender shall become effective under this Section 2.20 unless, (i) no Default shall have occurred or be continuing or would exist after giving effect to such Incremental Term Loanincrease, (Aii) on the representations and warranties contained in Article V and the other Loan Documents are true and correct as date of such earlier date, and except that for purposes of this Section 2.12increase, the representations and warranties contained conditions set forth in subsections paragraphs (a) and (b) of Section 5.01 4.02 shall be deemed satisfied and the Administrative Agent shall have received a certificate to refer to that effect dated such date and executed by a Financial Officer of the most recent financial statements furnished pursuant to subsections Borrower, (aiii) upon reasonable request by the Agent, the Agent shall have received legal opinions and board resolutions consistent with those delivered on the Closing Date under Sections 4.01(g) and 4.01(k)(i) and (b), respectively, of Section 6.01, and (Biv) no Default exists; (2) on a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms thatPro Forma Basis, after giving effect to such Incremental Commitments and any Acquisition to be consummated simultaneously with such increase, the Borrower shall be in compliance with Section 6.01 (it is bound by all terms being understood that for purposes of determining compliance with this Agreement and clause (iv), the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect Commitments shall be deemed to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative feebe fully drawn).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The BorrowersAny Incremental Commitments established hereunder shall have terms identical to the Commitments existing immediately prior to the establishment of such Incremental Commitments; provided that any commitment, Guarantorsarrangement, Administrative Agent upfront or similar fees may be agreed among the Borrower, the Lenders and the Additional Lenders providing such Incremental Commitments.
(e) Incremental Commitments shall enter into become Commitments under this Agreement pursuant to an amendment of (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Facility Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Commitment, each Additional Lender and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term LoanAgent. The Incremental Term Loan AmendmentAmendment may, without the consent of any other LenderAgents or Lenders, may effect such amendments to this Agreement and the other Loan Facility Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders Agent and the Borrowers Borrower to effect the provisions of this Section 2.20.
(f) This Section 2.20 shall supersede any provisions in connection with Section 2.17 or 10.02 to the establishment of such Incremental Term Loancontrary.
Appears in 3 contracts
Sources: Fourth Amendment and Restatement Agreement (Kindred Healthcare, Inc), Abl Credit Agreement (Kindred Healthcare, Inc), Abl Credit Agreement (Kindred Healthcare, Inc)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon Upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers Borrower may from time request: additional Term Commitments and/or additional Revolving Credit Commitments denominated in any currency to timebe incurred by the Borrower and/or any U.S. Subsidiary Guarantor (each, request a new term loan (an “Incremental Term LoanFacility”) pursuant to any Incremental Joinder; provided that after giving effect to any such addition, the aggregate amount of all additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.16(a) shall be incurred in compliance with the requirements of the Incremental Cap, tested at the time of incurrence thereof. Each such addition under this Section 2.16(a). shall be in an aggregate amount for all of $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
(b) Any loans made in respect of any such additional Term Commitments (the “Incremental Term Loans not to exceed $150,000,000; providedLoans”) may be made, howeverat the option of the Borrower, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan either by (i) shall rank pari passu in right of payment increasing the Initial Term Loans with the same terms (including pricing) as the existing Initial Term Loans and shall have the same benefits of any additional guaranties Loans, or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide creating a new Commitment pursuant to this Section 2.12 tranche of terms loans (an “Incremental Term Loan CommitmentClass”); provided that any Incremental Term Loan Class (A) shall, in connection therewith, deliver shall not mature prior to the Administrative Agent a new commitment agreement in form and substance satisfactory stated Maturity Date applicable to the Administrative Agent 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 its counsel(C) any Incremental Term Loans may participate on a pro rata basis, a less than pro rata basis (or, solely as compared to any later maturing Class of Term Loans, greater than pro rata basis) in any mandatory prepayments (but on a pro rata basis, greater than pro rata basis or a less than pro rata basis in any voluntary prepayments) with the then outstanding Term Loans; provided that clauses (A) and (B) above shall not apply to (X) any customary bridge loans so long as any loans, notes, securities or other Indebtedness which exchanged for or otherwise replace such bridge loans satisfies (or will satisfy at the time of incurrence or rollover) the requirements of such clauses and (Y) Incremental Facilities with an aggregate outstanding principal amount not in excess of $350,000,000.
(bc) 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 such Incremental Revolving Facility shall be no earlier than the final maturity date of the Initial Revolving Credit Facility, (ii) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the final maturity date of the Initial Revolving Credit Facility and (iii) any Incremental Revolving Facility may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro basis) in any reduction or termination as compared to earlier maturing Revolving Credit Commitments or (y) increasing any Class of Revolving Credit Commitments (the “Incremental Revolving Credit Commitments”) with the same terms as such existing Class of Revolving Credit Commitments (it being understood that, if required to consummate an Incremental Revolving Facility, the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Credit Facility being increased may be increased for all Revolving Credit Lenders of the Revolving Credit Facility being increased, but additional upfront or similar fees may be payable to the Lenders participating in the Incremental Revolving Credit Commitments without any requirement to pay such amounts to any existing Revolving Credit Lenders).
(d) The Borrower may invite any Lender or any additional Eligible Assignees to become Term Lenders or Revolving Credit Lenders, as applicable, pursuant to a commitment increase and joinder agreement (each, an “Incremental Joinder”). No Lender will be obligated to provide all or any portion of any Incremental Facility and the determination to provide such commitment shall be within the sole and absolute discretion of such Lender. Any failure by a Lender to respond to any such invitation shall not be deemed an acceptance or agreement to provide such Incremental Facility.
(e) If the any Term Commitments or Revolving Credit Commitments are increased added in accordance with this SectionSection 2.16, the Administrative Agent and the Borrowers Borrower shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation allocations of such Incremental Term Loanadditional Commitments. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders lenders providing such Incremental Facility of the final allocation of such Incremental Term Loan thereof and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocationDate. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying thataddition, before and after giving effect to such Incremental Term Loanincrease, (Ai)(A) the representations and warranties contained in Article V 5 and the other Loan Documents are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the Incremental Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date, and except (B) no Event of Default exists after giving effect to such addition (or, in the case incurred to fund a Permitted Acquisition, no Specified Event of Default exists after giving effect to such addition); provided that notwithstanding anything to the contrary in this Section 2.16 or in any other provisions of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Transaction, at the option of the Borrower, (1) the conditions to the Incremental Effective Date shall be subject to the LCT Provisions and (2) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Effective Date shall be the Specified Representations).
(f) On each Incremental Effective Date, (i) each Lender or Eligible Assignee which is providing an Incremental Term Loan Class (A) shall become a “Term Lender” for all purposes of this Section 2.12, Agreement and the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01other Loan Documents, and (B) no Default exists; (2) shall make an Incremental Term Loan to the Borrower or the applicable Subsidiary Guarantor in a statement principal amount equal to such additional Term Commitment, and such Incremental Term Loan shall be deemed a “Term Loan” for all purposes of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it (ii) each Lender or Eligible Assignee which is bound by providing an Incremental Revolving Credit Commitment shall become a “Revolving Credit Lender” for all terms purposes of this Agreement and the other Loan Documents; (3) if , with a Revolving Credit Commitment of the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Class.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(dg) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary interest rate applicable to evidence such any Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall Loans will be determined by the Borrowers Borrower and the Lenders. Additionallylenders providing such Incremental Term Loans; provided that in the case of any such Incremental Term Loans denominated in Dollars that are secured by the Collateral on a pari passu basis with the Initial Term Loans in right of payment and with respect to security (other than customary bridge loans), the BorrowersAll-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, Guarantors as provided in the proviso below, the Base Rate floor or Eurocurrency Rate floor) with respect to the Initial Term Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum (it being agreed that, the relative rate differentials in any pricing grid specified in the Applicable Margin shall continue to be maintained), provided that, unless otherwise agreed by the Borrower in its sole discretion, that any increase in All-In-Rate to any Initial Term Loan due to the application or imposition of an Base Rate floor or Eurocurrency Rate floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Eurocurrency Rate floor applicable to such Initial Term Loan.
(h) Any Incremental Facility, if secured, may be secured only by the Collateral (provided that, in the case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the applicable funds and each Lender shall execute related assets held in Escrow (and deliver to Administrative Agent 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.
(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 as 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 reasonably specify be required except to evidencethe extent affecting the rights and duties of, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendmentany fees or other amounts payable to, without the consent Administrative Agent); provided that, at the election of the Borrower, to the extent any more restrictive covenant is added for the benefit of any other LenderIncremental Facility (except to the extent only applicable after the latest maturity date of the Facilities), such covenant may effect such amendments to this Agreement and also be added for the other Loan Documents as may be necessary or appropriatebenefit of all of the Facilities (or, in the reasonable opinion case of a financial maintenance covenant, solely for the benefit of the Initial Revolving Credit Facility or other Facility that benefits from a financial maintenance covenant at such time); it being understood and agreed that no consent of the Administrative Agent and/or any Lender shall be required in connection with any amendment adding such covenant or implementing such Incremental Facility. The Borrower shall provide the Administrative Agent prompt written notice of any amendment to effect an Incremental Facility pursuant to this Section 2.16 and the Administrative Agent hereby agrees to (and is directed by each Lender to) acknowledge such amendment as promptly as practicable following such written notice; it being acknowledged and agreed by each Lender that the Administrative Agent, in its capacity as such, shall have no liability with respect to such acknowledgment and each Lender hereby irrevocably waives to the Lenders 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 2.16.
(j) The proceeds of any Incremental Facility may be used by the Borrower and the Borrowers, to implement to terms of the Incremental Term Loanits Subsidiaries for working capital and other general corporate purposes, including amortization, pricing, maturity, the financing of permitted acquisitions and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders Investments and the Borrowers in connection with the establishment of such Incremental Term Loanany other use not prohibited by this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Dun & Bradstreet Holdings, Inc.), Credit Agreement (Dun & Bradstreet Holdings, Inc.), Credit Agreement (Dun & Bradstreet Holdings, Inc.)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon The Borrower may by written notice from the Administrative Borrower to the Administrative Agent elect to request (which shall promptly notify x) prior to the Lenders)Revolving Termination Date, an increase to the Borrowers may from time to time, request a existing Revolving Commitments under one or more of the Revolving Facilities and/or (y) the establishment of one or more new term loan Commitments (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; providedeach, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shallin an amount not less than $100,000,000 individually and in an amount such that the Total Facility Amount does not exceed $4,000,000,000 (after giving effect to the requested increase). Each such notice shall specify (i) the date (each, in connection therewithan “Increase Effective Date”) on which Borrower proposes that the increased or new Commitments shall be effective, deliver 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) each of the conditions set forth in Section 5.2 shall be satisfied;
(ii) no Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date;
(iii) 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 with each of the 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 Revolving Loans pursuant to Section 2.24(d); and
(v) the 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 Loans made pursuant to the new Commitments shall be as follows:
(i) terms and provisions of Loans made pursuant to Incremental Term Loan Commitments (“Incremental Term Loans”) shall be, except as otherwise set forth herein or in the Increase Joinder, identical to the Tranche B Term Loans (it being understood that Incremental Term Loans may be part of an existing tranche of Term Loans);
(ii) all terms and provisions (including Maturity Date) of Revolving Loans made pursuant to new Commitments shall be identical to the existing Revolving Loans; provided that in connection with any such new Commitments for additional Revolving Loans, the Borrower may pay to the Lenders providing such Commitments a fee in an amount not to exceed the highest upfront fee paid to Revolving Lenders of the applicable Revolving Facility on the Closing Date;
(iii) the weighted average life to maturity of all new term loans under Incremental Term Loan Commitments 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 latest Maturity Date with respect to the Tranche B Term Loans as then in effect; and
(v) the interest rate margins for the new term loans under Incremental Term Loan Commitments shall be determined by Borrower and the applicable new Lenders; provided, however, that the interest rate margins for the new term loans under Incremental Term Loan Commitments shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to any tranche of Tranche B Term Loans plus 50 basis points (and the interest rate margins applicable to the Tranche B Term Loans shall be increased to the extent necessary to achieve the foregoing); provided, further, that in determining the interest rate margins applicable to the existing Tranche B Term Loans, and the Incremental Term Loans, as applicable, (x) original issue discount or upfront or similar fees (collectively, “OID”) payable by the Borrower to the Lenders of the existing Tranche B Term Loans or the Incremental Term Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity), (y) customary arrangement or commitment fees payable to arrangers (or their respective affiliates) shall be excluded and (z) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche B Term Loans, such increased amount shall be equated to interest rate margins for purposes of determining whether an increase in the interest rate margins for the Tranche B Term Loans shall be required, to the extent an increase in the interest rate floor in the Tranche B Term Loans would cause an increase in the interest rate margins, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche B Term Loans shall be increased by such increased amount. The increased or new Commitments shall be effected by a joinder agreement (the “Increase Joinder”) executed by Borrower, the Administrative Agent and each Lender making such increased or new Commitment, in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation each of such Incremental Term Loanthem. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan AmendmentIncrease Joinder may, without the consent of any other LenderLenders, may 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, to effect the Lenders and provisions of this Section 2.24.
(d) To the Borrowersextent the Commitments being increased on the relevant Increase Effective Date are Revolving Commitments, to implement to terms then each of the Incremental Term Loan, including amortization, pricing, maturityRevolving Lenders having a Revolving Commitment under the applicable Revolving Facility 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 under the applicable Revolving Facility on the Increase Effective Date (the “Post-Increase Revolving Lenders”), and such other technical amendments Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender, at the principal amount thereof, such interests in the Revolving Loans under the applicable Revolving Facility (which purchases shall be deemed prepayments of such Revolving Loans for purposes of Section 2.20) and, in the case of Alternative Currency Revolving Commitments, participation interests in LC Obligations and Swingline Loans outstanding on such Increase Effective Date as may shall be necessary or appropriate in order that, after giving effect to all such assignments and purchases, such Revolving Loans under the applicable Revolving Facility and, in the reasonable opinion case of Alternative Currency Revolving Commitments, 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 under the applicable Revolving Facility after giving effect to such increased Revolving Commitments under the applicable Revolving Facility.
(e) On any Increase Effective Date on which new Commitments for term loans under Incremental Term Loan Commitments are effective, subject to the satisfaction of the Administrative Agentforegoing terms and conditions, each Lender of such new Commitment shall make a new Term Loan to the Lenders 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 Borrowers in connection with 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 Incremental class of Term LoanLoans or any such new Commitments.
Appears in 3 contracts
Sources: Credit Agreement (Davita Inc), Credit Agreement (Davita Inc), Credit Agreement (Davita Inc)
Increase in Commitments. (a) Provided there exists no Default The (and no Default would result therefrom)x) U.S. Borrower may, upon by written notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify at any time after the Lenders), the Borrowers may from time to timeClosing Date, request a new term loan (an “on one or more occasions Incremental Term Loan”Loan Commitments and/or Incremental Revolving Credit Commitments and (y) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; providedthe EMEA Borrower may, however, that the Borrowers shall have delivered by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Pro Forma Compliance Certificate demonstrating thatLender hereunder, upon giving effect on a Pro Forma Basis shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; Lender and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall be treated substantially the same as set forth (and in any event no more favorably thani) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any the Incremental Term Loan hereunder Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000 (and 10,000,000, in integral multiples the case of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shallCommitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in connection therewith, deliver the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent a new commitment agreement in form Agent), such minimum increments as the Applicable Borrower and substance satisfactory to the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and its counsel(iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent The Applicable Borrower and the Borrowers shall determine the effective date (the “each Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to the Administrative Agent any an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure evidence the Incremental Term Loan Commitment of such Incremental Term LoanLender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan AmendmentCommitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such amendments Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to this Agreement the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary or appropriateto ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in the reasonable opinion each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative AgentAgent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the Lenders and scheduled amortization payments set forth in Section 2.13(b) required to be made after the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment making of such Incremental Term LoanLoans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 3 contracts
Sources: Credit Agreement (GTT Communications, Inc.), Credit Agreement (GTT Communications, Inc.), Credit Agreement (GTT Communications, Inc.)
Increase in Commitments. (a) Provided there exists no Default (At any time during the period from and no Default would result therefrom)after the Closing Date through the date that is 12 months after the Closing Date, upon notice from at the Administrative option of Borrower to and with the Administrative Agent (which shall promptly notify the Lenders)consent of Agent, the Borrowers Commitments and the Maximum Revolver Amount may from time to timebe increased on one occasion by an amount not in excess of $20,000,000 (such increase that satisfies the terms and conditions herein, request a new term loan (an “Incremental Term LoanApproved Increase”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that if and only if (i) each of the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants conditions precedent set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right 3.2 are satisfied as of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and Increase Effective Date, (ii) Borrower has delivered to Agent updated pro forma Projections (after giving effect to the proposed increase) for Borrower and its Subsidiaries evidencing compliance on a pro forma basis with Section 7(a) for the 12 calendar months (on a quarter-by-quarter basis) following the Increase Effective Date, in form and consent reasonably acceptable to Agent, (iii) Borrower shall have paid to Agent all fees due and payable as of the Increase Effective Date pursuant to the Fee Letter, and (iv) Agent or Borrower have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrower to provide the proposed increase. Unless waived by Agent, Borrower shall provide written notice of a proposed increase to Agent, which notice shall specify a date not less than 20 days after the date of such notice on which the proposed increase is to be treated substantially effective (the same as (and in any event no more favorably than) the existing Term Loans“Increase Effective Date”). The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder proposed increase shall be in a minimum an amount of at least $10,000,000 (5,000,000 and in integral multiples of $10,000,000 1,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this SectionAgent shall invite each Lender to increase its Commitment (it being understood that no Lender shall be obligated to increase its Commitment), the Administrative or may invite any prospective lender who is reasonably satisfactory to Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As become a condition precedent to such increaseLender in connection with an Approved Increase by executing a joinder agreement, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance reasonably satisfactory to Agent, to which such prospective lender, Borrower, and Agent are party (the Administrative Agent: (1“Increase Joinder”). So long as each of the requirements set forth in Section 2.14(a) a certificate of each Loan Party dated and this Section 2.14(b) are satisfied, the increased Commitments with respect to an Approved Increase shall become effective as of the Incremental Term Loan Increase Effective Date.
(c) To the extent any Advances or Letters of Credit are outstanding on the Increase Effective Date, each of the Lenders having a Commitment prior to the Increase Effective Date (in sufficient copies for each Lenderthe “Pre- Increase Revolver Lenders”) signed by shall assign to any Lender which is acquiring a Responsible Officer of such Loan Party new or additional Commitment on the Increase Effective Date (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase“Post-Increase Revolver Lenders”), and (ii) certifying thatsuch Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, before at the principal amount thereof, such interests in the Advances and after giving effect to participation interests in Letters of Credit on such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct Increase Effective Date as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms necessary in order that, after giving effect to all such increaseassignments and purchases, it is bound such Advances and participation interests in Letters of Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Commitments.
(d) Unless otherwise specifically provided herein, all terms of references in this Agreement and any other Loan Document to Advances shall be deemed, unless the context otherwise requires, to include Advances made pursuant to the increased Commitments and Maximum Revolver Amount pursuant to this Section 2.14. The Advances, Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Advances, Commitments, and Maximum Revolver Amount under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Noteshall, then a revised Note in favor of such Lender reflecting such Lender’s Commitment without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrower shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of any such Incremental Term Loannew Commitments and Maximum Revolver Amount.
Appears in 2 contracts
Sources: Credit Agreement (Powerwave Technologies Inc), Credit Agreement (Powerwave Technologies Inc)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower Subject to the Administrative Agent (which shall promptly notify terms and conditions hereof, at any time subject to the Lenders)terms and conditions hereof, the Borrowers Borrower may from time request to time, request a new add one or more term loan facilities (each, an “Incremental Term Loan Commitment” and the term loans thereunder, an “Incremental Term Loan”) and/or increases in the Revolving Commitments (it being understood that the aggregate amount of all such increases in the Revolving Commitments shall not exceed $100,000,000 in the aggregate at any one time) (each, an “Incremental Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans”; each Incremental Term Loan Commitment and each Incremental Revolving Commitment are each sometimes referred to herein individually as an “Incremental Facility” and collectively as the “Incremental Facilities”). No Lender shall be obligated to participate in any Incremental Facility, and each Lender’s determination to participate in any such Incremental Facility (to the extent invited to participate) shall be in such Lender’s sole and absolute discretion. The Administrative Agent shall invite each Revolving Lender to provide a portion of each requested Incremental Revolving Commitment ratably in accordance with its Revolving Percentage (it being agreed that no Revolving Lender shall be obligated to provide an Incremental Revolving Commitment and that any Revolving Lender may elect to participate in such Incremental Revolving Commitment in an aggregate amount for all that is less than its Revolving Percentage of such requested Incremental Revolving Commitment or more than its Revolving Percentage of such requested Incremental Revolving Commitment if other Revolving Lenders have elected not participate in any applicable requested Incremental Revolving Commitment) and to the extent, five (5) Business Days after receipt of invitation, sufficient Revolving Lenders do not agree to provide such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered Revolving Commitment in connection with such proposed Incremental Revolving Commitment on terms acceptable to the Administrative Agent Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Pro Forma Compliance Certificate demonstrating thatLender in connection with the proposed Incremental Revolving Commitment. The Borrower may invite any Lender, upon giving effect on or any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Pro Forma Basis to such Lender in connection with a requested Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that to provide all or any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount portion of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender . Any Incremental Facility shall be obligated and/or required to accept an increase in its Commitment the amount of at least $1,000,000 (or such lower amount that represents all remaining availability pursuant to this Section 2.12 unless it specifically consents to 2.25) and integral multiples of $500,000 in excess thereof (or such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment lower amount that represents all remaining availability pursuant to this Section 2.12 2.25). There shall not be more than five (an “5) Incremental Term Loan Commitment”) shall, in connection therewith, deliver Facilities (or such larger number to which the Administrative Agent a new commitment agreement may agree in form and substance satisfactory to its reasonable discretion) during the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with term of this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term LoanAgreement. The Administrative Agent shall promptly notify parties hereto acknowledge and agree that an Incremental Facility, if funded, may, at the Administrative Borrower and time of its institution, cause the Lenders total amount of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended Obligations to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)exceed $150,000,000.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (DoubleVerify Holdings, Inc.), Amendment and Restatement Agreement (DoubleVerify Holdings, Inc.)
Increase in Commitments. (a) Provided there exists no Default (At any time during the period from and no Default would result therefrom)after the Closing Date through the date that is the fourth year anniversary of the Closing Date, upon notice from at the option of the Borrower with the prior written consent of the Administrative Borrower Agent, such consent to be granted in the Administrative Agent’s sole discretion, and subject to the Administrative Agent conditions set forth in clause (which shall promptly notify the Lenders)b) below, the Borrowers Revolving Commitments may from time to timebe increased by, request a or one or more new tranches of term loan loans (the “Additional Term Loans”) may be created in, an amount not in excess of $40,000,000 (each such increase, an “Incremental Term LoanIncrease”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000); provided, however, (i) that in no event shall the Borrowers Revolving Commitments be increased by an amount in excess of $5,000,000 and (ii) there shall be not more than five (5) Increases during the term of this Agreement. The Administrative Agent shall invite each Lender to increase its Revolving Commitments or provide an Additional Term Loan (as the case may be) (it being understood that no Lender shall be obligated to increase its Revolving Commitments or provide an Additional Term Loan) in connection with a proposed Increase at the interest margin proposed by Borrower, and if sufficient Lenders do not agree to increase their Revolving Commitments or provide an Additional Term Loan (as the case may be) in connection with such proposed Increase on terms acceptable to the Borrower, then the Administrative Agent or the Borrower may invite any prospective lender who is reasonably satisfactory to Administrative Agent and the Borrower to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $2,500,000 and integral multiples of $100,000 in excess thereof.
(b) Each of the following shall be conditions precedent to any Increase of the Revolving Commitments or the making of any Additional Term Loans in connection therewith:
(i) each of the conditions precedent set forth in Section 5.2 (subject to customary “SunGard” limitations in connection with Limited Condition Acquisitions) shall be satisfied and no Default or Event of Default (other than in connection with Limited Condition Acquisitions, in which case there shall be no Default or Event of Default as of the LCA Test Date) shall occur after giving effect to the occurrence of such Increase of the Revolving Commitments or the making of any Additional Term Loans and the use or proceeds thereof,
(ii) Borrower shall be in compliance with the then applicable financial covenants after giving effect to the making of the Increase of the Revolving Commitments or the making of any Additional Term Loans, and the application of the proceeds thereof, on a Pro Forma Basis and calculated in accordance with Section 1.3 (in the case such Additional Term Loan is used to finance a Limited Condition Acquisition); provided, that, the Consolidated Leverage Ratio as of the last day of the fiscal quarter most recently ended prior to the date on which the Additional Term Loan is funded (subject to Section 1.3 in the case such Additional Term Loan is used to finance a Limited Condition Acquisition) shall not exceed 0.25x less than the then-prevailing Consolidated Leverage Ratio covenant compliance level set forth in Section 7.1 for the most recently reported fiscal quarter end (subject to Section 1.3 in the case such Additional Term Loan is used to finance a Limited Condition Acquisition),
(iii) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in evidencing compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right requirements of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and clause (ii) above,
(iv) Borrower shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver have delivered to the Administrative Agent, which shall in turn promptly furnish to the Lenders, an irrevocable written request for such Additional Term Loan at least ten (10) Business Days prior to the requested funding date of such Additional Term Loan or Increase to the Revolving Commitments or such earlier date as the Administrative Agent may agree; provided that if such request indicates that such request is conditioned upon the occurrence of a new commitment specified event, such request may be revoked if such event does not occur prior to the requested funding date.
(v) Any prospective Lender, the Borrower and the Administrative Agent have signed a joinder agreement to this Agreement (a “Joinder”), in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance reasonably satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as , to which such prospective Lender, the Borrower, and the Administrative Agent are party. Any Joinder may, with the consent of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying Administrative Agent, the Borrower and attaching the resolutions adopted by such Loan Party approving Lenders or consenting prospective Lender agreeing to such increase, and (ii) certifying that, before and after giving effect to such Incremental the Additional Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriateappropriate to effectuate the provisions of this Section 2.26 (including, if applicable, any amendment necessary to ensure and demonstrate that the Liens and security interests granted by the Loan Documents are perfected under the UCC to secure the Obligations in the reasonable opinion respect of the Administrative Agent, Additional Term Loans or Increase to the Lenders Revolving Commitments) and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers Borrower shall have executed any Notes requested by any Lender in connection with the establishment making of the Additional Term Loan or Increase to the Revolving Comments.
(vi) The Borrower shall have paid all fees required pursuant to the Fee Letter.
(c) No Lender shall be obligated to participate in any Additional Term Loan or Increase to the Revolving Commitment, and each such Lender’s determination to participate shall be in such Lender’s sole and absolute discretion. The Administrative Agent shall invite each Lender to provide an Additional Term Loan or Increase to the Revolving Commitment (it being understood that no Lender shall be obligated to provide an Additional Term Loan or Increase to the Revolving Commitment) and to the extent that, within five (5) Business Days after receipt of such invitation, sufficient Term Lenders do not agree to provide an Additional Term Loan or Increase to the Revolving Commitment on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” and is approved by the Administrative Agent (such approval not to be unreasonably withheld) to become a Lender in connection with the proposed Additional Term Loan or Increase to the Revolving Commitment.
(d) The Additional Term Loan or Increase to the Revolving Commitment shall, for purposes of prepayments, be treated substantially the same as the Term Loans funded on the Closing Date and the then existing Revolving Commitments, and shall have the same terms as the Term Loans and Revolving Commitment (except as contemplated in the proviso below and except for terms that are applicable after the later of the Term Loan Maturity Date and the Revolving Termination Date); provided that (except as may be mutually agreed among the Borrower, the Administrative Agent and the Required Lenders or such greater percentage of Lenders required by Section 10.1(a)), (i) no Additional Term Loan shall have a final maturity date earlier than the Term Loan Maturity Date and no Increase to the Revolving Commitment shall have a maturity date earlier than the Revolving Termination Date, (ii) the amortization schedule of any such Additional Term Loan shall not have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term Loans funded on the Closing Date, and (iii) if the all-in yield (which will be determined by (x) including interest rate margins, original issue discount (based on a four-year average life to maturity or, if less, the remaining life to maturity), and upfront fees payable by the Borrower generally to all the lenders of such Additional Term Loan or Increase to the Revolving Commitment, (y) if such Additional Term Loan or Increase to the Revolving Commitment includes an interest rate floor greater than the applicable interest rate floor under the then extant Term Facility or Revolving Facility, such differential between interest rate floors will be equated to the applicable all-in-yield for purposes of determining whether an increase to the interest rate margin under the then extant Term Facility or Revolving Facility will be required, and in such case, the interest rate floor (but not the interest rate margin) applicable to the then extant Term Facility or Revolving Facility will be increased to the extent of such differential between interest rate floors, and (z) excluding arrangement, commitment, structuring, underwriting and amendment fees applicable to such Additional Term Loan or Increase to the Revolving Commitment) shall not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the then extant Term Loan Facility or Revolving Facility unless the interest rate margin (or Eurodollar or ABR floors) with respect to the then extant Term Facility or Revolving Facility is increased by an amount equal to the difference between the all-in yield with respect to such incremental term loans and the all-in yield applicable to the then extant Term Loan Facility or Revolving Facility, minus 0.50%. The Revolving Loans and Revolving Commitments established pursuant to this Section 2.26 shall constitute Revolving Loans and Revolving Commitments under, and shall be entitled to all the benefits afforded by, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents. Scheduled payments on the Additional Term Loan shall commence on the first full quarter end following an Additional Term Loan advance, at the then applicable payment terms for the extant Term Loan.
(e) Unless otherwise specifically provided herein, (i) all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the increased Revolving Commitments pursuant to this Section 2.26, and (ii) upon the funding of any Additional Term Loan, all references in this Agreement and any other Loan Document to the Term Loans shall be deemed, unless the context otherwise requires, to include the Additional Term Loan, as applicable, advanced pursuant to this Section 2.26 and (iii) all references in this Agreement and any other Loan Document to the Term Commitments shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to the Additional Term Loans contemplated pursuant to this Section 2.26.
(f) Any Additional Term Loan established pursuant to this Section 2.26 shall constitute a Term Loan and Term Commitment under the Loan Documents, and shall rank pari passu in right of payment in respect of the Collateral and with the Obligations in respect of the Revolving Loans and the Term Loans. Any Revolving Loans and Increase to the Revolving Commitments established pursuant to this Section 2.26 shall constitute Revolving Loans and Revolving Commitments under the Loan Documents, and shall rank pari passu in right of payment in respect of the Collateral and with the Obligations in respect of the Revolving Loans and the Term Loans.
(g) Upon the funding of each Additional Term Loan that represents an increase to the Term Loan Commitment hereunder or has the same amortization of the then extant Term Loans, the scheduled amortization payments set forth in Section 2.3 shall be recalculated and increased, commencing in the first full quarter after such Incremental Term LoanLoan is funded, by aggregating the Term Loan made on the Closing Date with the Incremental Term Loan and multiplying such amount by the applicable percentage set forth in the table in Section 2.3 and such amended amortization schedule shall be effective commencing on the last day of the first full fiscal quarter after the Incremental Term Loan is funded.
(h) This Section supersedes any provisions in Section 2.18 or 10.1 to the contrary.
(i) The proceeds of any Increase shall be used to finance Permitted Acquisitions.
Appears in 2 contracts
Sources: Credit Agreement (Cambium Networks Corp), Credit Agreement (Cambium Networks Corp)
Increase in Commitments. (a) Provided there exists At any time prior to the Maturity Date, provided no Default shall have occurred and then be continuing, Borrower may on a one time basis, if it so elects, increase the aggregate amount of the Aggregate Commitments (and no Default would result therefromsubject to proviso (ii) in the next sentence), upon either by designating an Eligible Assignee not theretofore a Lender to become a Lender and/or by agreeing with an existing Lender or Lenders that such Lender’s Commitment (or such Lenders’ Commitments) shall be increased. No Lender’s Commitment shall be increased in connection with any such increase in the Aggregate Commitments without such Lender’s consent. Upon execution and delivery by Borrower and any such Lender or other financial institution of a joinder agreement in form reasonably satisfactory to Administrative Agent, such existing Lender shall have a Commitment as therein set forth or such Eligible Assignee shall become a Lender with a Commitment as therein set forth and all the rights and obligations of a Lender with such a Commitment hereunder; provided that:
(i) Borrower shall provide prompt notice from the of such increase to Administrative Borrower to the Administrative Agent (which Agent, who shall promptly notify the other Lenders), ;
(ii) the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all of such Incremental Term Loans increase does not cause the Aggregate Commitments to exceed $150,000,000; provided, however, that 150,000,000 (less the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder reduction in the Aggregate Commitments pursuant to Section 2.06); and
(iii) any such request for an increase shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof)5,000,000. To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an Upon any increase in its Commitment the Aggregate Commitments pursuant to this Section 2.12 unless it specifically consents to such increase 2.15, within five (5) Business Days (in writing. Any Lender the case of any Base Rate Loans then outstanding) or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to at the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders end of the final allocation then current Interest Period with respect thereto (in the case of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto any Eurodollar Rate Loans then outstanding), as applicable, each Lender’s Applicable Percentage shall be deemed amended recalculated to reflect such increase in the Aggregate Commitments and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each outstanding principal balance of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 Loans shall be deemed reallocated among the Lenders such that the outstanding principal amount of Loans owed to refer each Lender shall be equal to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; Applicable Percentage (4) if the Incremental Term Loan is being provided as recalculated). All payments, repayments and other disbursements of funds by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and to the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it thereupon and, at all times thereafter, be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and made in accordance with each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan’s recalculated Applicable Percentage.
Appears in 2 contracts
Sources: Credit Agreement (PMC Commercial Trust /Tx), Credit Agreement (PMC Commercial Trust /Tx)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower At any time prior to the Administrative Agent (which shall promptly notify the Lenders)Facility Termination Date, the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered the ability, in consultation with the Agent and through written notice to the Administrative Agent Agent, substantially in the form of Exhibit D (the “Increase Notice”), to request increases in the Aggregate Commitment (each, a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10“Requested Commitment Increase”); and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and no Lender shall have the same benefits of any additional guaranties or collateral and obligation to participate in any Requested Commitment Increase, (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate principal amount of any Incremental Term Loan hereunder all such increases shall not exceed $500,000,000, (iii) each such Requested Commitment Increase shall be in a minimum principal amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan50,000,000 or, if less, the maximum remaining amount permitted pursuant to clause (ii) above, (iv) any such increase shall be allocated among each Borrower’s Sublimit in accordance with the Increase Notice (it being understood that any such Sublimit changes shall not count as one of the eight Sublimit reallocations the Borrowers may solicit increased commitments are permitted each fiscal year under Section 2.7(c)), (v) the other terms and documentation in respect of such Requested Commitment Increase shall be reasonably satisfactory to the Agent and (vi) no Default or Unmatured Default shall have occurred and be continuing or would result from existing Lenders and/or invite additional Eligible Assignees the proposed Requested Commitment Increase.
(b) The Agent shall promptly give notice of such Requested Commitment Increase to become the Lenders; provided, however, that no existing . Each Lender shall notify the Agent within ten (10) Business Days (or such longer period of time which may be obligated and/or required agreed upon by the Agent and the Borrowers and communicated to accept an increase in its Commitment pursuant the Lenders) from the date of delivery of such notice to this Section 2.12 unless the Lenders whether or not it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing offers to increase its Commitment and, if so, by what amount. Any Lender not responding within such time period shall be deemed to have declined to offer to increase its Commitment. The Agent shall notify the Borrowers of the Lenders’ responses to each request made hereunder. The Borrowers shall have the right at their sole discretion to accept or provide reject in whole or in part any offered Commitment increase or at their own expense to solicit a new Commitment from any third party financial institution reasonably acceptable to the Agent. Any such financial institution (if not already a Lender hereunder) shall become a party to this Agreement, as a Lender pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Borrowers.
(c) This Upon the completion of each Requested Commitment Increase, (i) entries in the accounts maintained pursuant to Section shall supersede any provisions 2.15 will be revised to reflect the revised Commitments and Pro Rata Shares of each of the Lenders (including each new Lender becoming a party to this Agreement pursuant to clause (b) above), (ii) subject to Section 2.23.1(ii), the outstanding Revolving Loans will be reallocated on the effective date of such increase among the Lenders in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent accordance with their revised Pro Rata Shares and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and including each new Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments becoming a party to this Agreement pursuant to clause (b) above) agree to make all payments and the other Loan Documents as may be adjustments necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and effect such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders reallocation and the Borrowers shall pay any and all costs required in connection with such reallocation as if such reallocation were a prepayment and (iii) the establishment Maximum Sublimit of such Incremental Term Loaneach Borrower shall be increased in accordance with the Increase Notice (provided that no Borrower’s Maximum Sublimit shall exceed the Aggregate Commitment).
Appears in 2 contracts
Sources: Fourth Amendment to Second Amended and Restated Credit Agreement (Baltimore Gas & Electric Co), Credit Agreement (Pepco Holdings Inc)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)At any time the Borrower may, upon notice from on the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to timeterms set forth below, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000that the Aggregate Commitments hereunder be increased; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) the Aggregate Commitments hereunder at no time shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and exceed $1,500,000,000, (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of each such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder request shall be in a minimum amount of at least $10,000,000 (and in integral multiples increments of $10,000,000 5,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept (iii) an increase in its the Aggregate Commitments hereunder may only be made at a time when no Default or Event of Default shall have occurred and be continuing, and (iv) no Lender’s Commitment pursuant to shall be increased under this Section 2.12 unless it specifically consents to 2.16 without its consent. In the event of such a requested increase in writing. Any the Aggregate Commitment, any financial institution which the Borrower invites to become a Lender or Eligible Assignee agreeing to increase its Commitment or provide may set the amount of its Commitment at a new Commitment pursuant level agreed to this Section 2.12 by the Borrower; provided that if such financial institution is not an existing Lender, (an “Incremental Term Loan Commitment”x) shall, in connection therewith, deliver to the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such financial institution’s becoming a new commitment agreement Lender if such consent would be required under Section 10.06(b) for an assignment of Loans to such Person and (y) such financial institution shall not be any Person prohibited from taking an assignment of Loans pursuant to Section 10.06(b)(v). In the event that the Borrower and one or more of the Lenders (or other financial institutions) shall agree upon such an increase in form and substance satisfactory to the Administrative Agent and its counsel.
Aggregate Commitments (bi) If the Commitments are increased in accordance with this SectionBorrower, the Administrative Agent and each Lender or other financial institution increasing its Commitment or extending a new Commitment shall enter into an amendment to this Agreement setting forth the Borrowers amounts of the Commitments, as so increased, providing that the financial institutions extending new Commitments shall determine be Lenders for all purposes under this Agreement, and setting forth such additional provisions as the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify consider reasonably appropriate to effectuate the Administrative Borrower and the Lenders provisions of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, this Section 2.16 and (ii) certifying thatthe Borrower shall furnish, before if requested, a new Note to each financial institution that is extending a new Commitment or increasing its Commitment. No such amendment shall require the approval or consent of any Lender whose Commitment is not being increased. Upon the execution and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as delivery of such earlier dateamendment as provided above, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor upon satisfaction of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if other conditions as the Incremental Term Loan is being provided by a Administrative Agent may reasonably specify upon the request of the financial institutions that are extending new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase Commitments (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without administering the consent reallocation of any other Lenderoutstanding Loans ratably among the Lenders after giving effect to each such increase in the Aggregate Commitments, may effect such amendments to and the delivery of certificates, evidence of corporate authority and legal opinions on behalf of the Borrower), this Agreement and the other Loan Documents as may shall be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, deemed to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanamended accordingly.
Appears in 2 contracts
Sources: Revolving Credit Agreement (TJX Companies Inc /De/), Revolving Credit Agreement (TJX Companies Inc /De/)
Increase in Commitments. (a) Provided there exists So long as (x) no Default (and no Default exists or would result therefrom), upon notice from the Administrative Borrower exist after giving effect to the Administrative Agent (which shall promptly notify making of the Lenders), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not or Incremental Revolving Loans referred to exceed $150,000,000; provided, however, that below and the Borrowers shall have delivered use of proceeds there from and (y) after giving effect to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such making of the Incremental Term LoanLoans or Incremental Revolving Loans referred to below and the use of proceeds there from, the Loan Parties Borrower would be in compliance with the Financial Covenants on a pro forma basis on such date and for the most cent fiscal quarter for which financial covenants set forth statements have been delivered in accordance with Section 6.105.01 after giving effect on a pro forma basis to any related adjustment events, including any Acquisitions or dispositions after the beginning of the relevant calculation period but prior to or simultaneous with the borrows of such Incremental Term Loans or Incremental Revolving Loans, then upon written notice to the Administrative Agent, Borrower may from time to time (but only after the completion of the syndication the Commitments and Loans (within the meaning of the Fee Letter) request additional term loans (the “Incremental Term Loans” and the related commitments, the “Incremental Term Loan Commitments”) in an aggregate principal amount not to exceed $200,000,000 and/or additional revolving loans (the “Incremental Revolving Loans” and the related commitments, the “Incremental Revolving Loan Commitments”) in an aggregate principal amount not to exceed $25,000,000; provided that the aggregate amount of Incremental Term Loans and provided further Incremental Revolving Loans shall not exceed $200,000,000; provided, further, that any such increase shall be in an aggregate amount of $25,000,000 or any whole multiple of $1,000,000 in excess thereof; provided, further, that any existing Lender approached to provide all or a portion of the Incremental Term Loans and related commitments or Incremental Revolving Loans and related commitments may elect or decline, in its sole discretion, to provide such loans and commitments. To the extent the existing Lenders decline to agree to provide or do not affirmatively agree to provide within 10 Business Days of such request any portion of an Incremental Term Loan or an Incremental Revolving Loan and the related commitments, Borrower may seek such Incremental Term Loan or Incremental Revolving Loan from any bank or financial institution that would qualify as an Eligible Assignee. The Incremental Term Loans (iA) shall rank pari passu in right of payment and right of security in respect of the Collateral with the existing Term Loans and (B) other than amortization, pricing and maturity date, shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same terms as Term Loans existing immediately prior to the effectiveness of the amendment creating such Incremental Term Loans; provided that (and in any event no more favorably thanx) the existing Incremental Term Loans shall not have a final maturity date earlier than the Term Loan Maturity Date, and (y) the Incremental Term Loans shall not have a Weighted Average Life to Maturity that is shorter than the then-remaining Weighted Average Life to Maturity of the Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Any Term Loan. The aggregate amount of any Lender or additional bank or financial institution electing to make available an Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan CommitmentLender”) shallshall become a Lender or make its Incremental Term Loan Commitment available, in connection therewithas the case may be, deliver under this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement giving effect to the modifications permitted by this Section 2.21 and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Incremental Term Lender and the Administrative Agent a new commitment agreement Agent, and to any other documentation; in form each case on terms and substance documentation satisfactory to the Administrative Agent and the Lead Arranger. The Incremental Revolving Loans (A) shall rank pari passu in right of payment and right of security in respect of the Collateral with the Revolving Loans and (B) other than pricing and maturity date, shall have substantially the same terms as Revolving Loans existing immediately prior to the effectiveness of the amendment creating such Incremental Revolving Loans; provided that (x) the Incremental Revolving Loans shall not have a final maturity date earlier than the applicable maturity date of the Revolving Loans and commitments thereunder may not be terminated prior to the date that all Revolving Credit Commitments hereunder are terminated. Any Revolving Lender or additional bank or financial institution electing to make available an Incremental Revolving Commitment (an “Incremental Revolving Lender”) shall become a Lender or make its counsel.
(b) If Incremental Revolving Commitment available, as the Commitments are increased case may be, under this Agreement, pursuant to an Incremental Facility Amendment to this Agreement giving effect to the modifications permitted by this Section 2.21 and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Incremental Revolving Lender and the Administrative Agent, and to any other documentation, in accordance with this Section, each case on terms and documentation satisfactory to the Administrative Agent and the Borrowers shall determine Lead Arranger. To the extent an Incremental Facility Amendment is entered into to increase the Revolving Credit Commitments with respect to an existing Class of Revolving Credit Commitments, then each of the Revolving Lenders of such Class having a Revolving Credit Commitment of such Class prior to such effective date of such Incremental Facility Amendment (the “Pre-Increase Revolving Lenders of such Class” and the effective date (of such Incremental Facility Amendment, the “Incremental Term Loan Increase Effective Date”) shall assign on the Increase Effective Date, and the final allocation such Incremental Revolving Lenders of such Incremental Term Loan. The Administrative Agent Class shall promptly notify the Administrative Borrower and the Lenders of the final allocation purchase from each Pre-Increase Revolving Lender of such Incremental Term Loan Class, at the principal amount thereof, such interests in the Revolving Loans of such Class and, if such Class is the Revolving Credit Commitments, participation interests in LC Exposure and the Incremental Term Loan Swingline Loans outstanding on such Increase Effective Date and Schedule 2.01 hereto as shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, necessary in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms order that, after giving effect to all such increaseassignments and purchases, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor Revolving Loans of such Lender reflecting Class and participation interests in LC Exposure and Swingline Loans, if applicable, will be held by Pre-Increase Revolving Lenders of such Lender’s Commitment Class and Incremental Revolving Lenders of such Class ratably in accordance with their Revolving Commitments of such Class after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor increased Revolving Commitments of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Class. An Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan AmendmentFacility Amendment may, without the consent of any other LenderLenders, may 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, to effect the provisions of this Section 2.21.
(b) If any Incremental Term Loan Commitments or Incremental Revolving Loan Commitments are made in accordance with this Section 2.21, the Administrative Agent and Borrower shall determine the effective date (each, an “Incremental Facility Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify Borrower and the Lenders of the final allocation of such increase and the BorrowersIncremental Facility Effective Date. As a condition precedent to such increase, Borrower shall deliver to implement to terms the Administrative Agent a certificate of Borrower dated as of the Incremental Facility Effective Date signed by a Financial Officer of Borrower (i) certifying and attaching (A) the resolutions adopted by Borrower approving or consenting to such increase and (B) a certificate demonstrating pro forma compliance with the Financial Covenants as set forth in Section 2.21(a) and (ii) certifying that, before and after giving effect to such increase, (A) the representations and warranties set forth in Article III and the other Loan Documents shall be true and correct in all material respects on and as of the Incremental Facility Effective Date (unless expressly stated to relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (B) no Default shall have occurred and be continuing.
(c) Borrower shall use the proceeds of any Incremental Term LoanLoans and Incremental Revolving Loans for general corporate purposes, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate acquisitions.
(d) This Section 2.21 shall supersede any provisions in Section 9.08 to the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loancontrary.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Emdeon Inc.), First Lien Credit Agreement (Emdeon Inc.)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)At any time, the Borrowers may from time Borrower may, if it so elects, increase the amount of the Total Revolving Credit Commitment (each such increase to time, request a new term loan (an “Incremental Term Loan”) be in an aggregate amount for of not less than $25,000,000), either by designating a financial institution or institutions (or other Person) not theretofore Lenders to become Lenders (such designation to be effective only if each such financial institution (or other Person) accepts a Commitment of not less than $5,000,000) or by agreeing with an existing Lender or Lenders that such Lender’s or Lenders’ Revolving Credit Commitments shall be increased. Upon execution and delivery by the Borrower and such Lender or Lenders or other financial institution or institutions (or other Person) of an instrument (a “Commitment Acceptance”) substantially in the form of Exhibit E hereto, with such written consents of the Issuing Lender, the Swing Line Lender and the Agent as would be required in the case of an assignment of a Revolving Credit Commitment to such Person, such existing Lender or Lenders shall have additional Revolving Credit Commitments as therein set forth or such other financial institution or institutions (or other Person) shall become Lenders with Revolving Credit Commitments as therein set forth and with all the rights and obligations of Lenders with such Incremental Term Loans not to exceed $150,000,000Revolving Credit Commitments hereunder; provided, however, that provided that:
(i) the Borrowers Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on copy of the Commitment Acceptance (a Pro Forma Basis copy of which the Agent shall promptly deliver to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and each Lender);
(ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12increase, the representations and warranties of the Loan Parties contained in subsections (a) and (b) Article 3 of Section 5.01 this Agreement shall be deemed true in all material respects;
(iii) at the time of such increase, no Default shall have occurred and be continuing or would result from such increase;
(iv) after giving effect to refer to such increase (assuming for such purpose that Revolving Credit Loans in the most recent financial statements furnished pursuant to subsections (a) and (bfull amount of the Total Revolving Credit Commitment were outstanding), respectively, of Section 6.01, and the Incurrence Test would be met;
(Bv) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, the Total Revolving Credit Commitment shall not exceed, by more than $50,000,000, the Total Revolving Credit Commitment in effect on the ARCA Effective Date minus any decreases in the Total Revolving Credit Commitment made pursuant to Section 2.11 or Section 2.12; and
(vi) the Agent shall have received such evidence (including an opinion of counsel for the Loan Parties) as it is bound may reasonably request to confirm the due authorization of the transactions contemplated by all terms of this Agreement Section and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, validity and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion enforceability of the Administrative Agent, the Lenders and the Borrowers, to implement to terms obligations of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term LoanLoan Parties resulting therefrom.
Appears in 2 contracts
Sources: Revolving Credit and Guaranty Agreement (Tower International, Inc.), Revolving Credit and Guaranty Agreement (Tower International, Inc.)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)at its option, the Borrowers may at any time or from time to timetime prior to the Termination Date, request a new term loan increase the Total Commitments by up to $135,000,000 (an the “Incremental Term LoanCommitment Increase”) in to an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000400,000,000 by requesting the existing Lenders or new lenders to commit to any such Commitment Increase; provided that: (i) no Lender shall be required to commit to any such increase; (ii) such increase shall be in an amount equal to at least $10,000,000 (or such lesser amount as agreed by the Administrative Agent) or a whole multiple of $1,000,000 in excess thereof; (iii) no such increase shall become effective unless at the time thereof and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing, (B) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects; provided, howeverfurther, that, to the extent any such representation and warranty is already qualified by materiality or reference to Material Adverse Effect, such representation shall be true and correct in all respects and (C) the Administrative Agent shall have received a certificate from Borrower to the effect of sub-clauses (A) and (B) of clause (iii); and (iv) no new lender shall become a Lender pursuant to this Section 2.21 unless such lender is an Eligible Assignee and the Administrative Agent and each Issuing Lender shall have given its prior written consent; provided, further, that such prior written consent shall (1) not be unreasonably withheld, conditioned or delayed and (2) only be required to the Borrowers extent such consent would be required in connection with the assignment of Loans or Commitments to such new lender pursuant to Section 10.6. The Borrower shall have be entitled to pay upfront or other fees to such lenders who extend credit pursuant to this Section 2.21 as the Borrower and such lenders may agree. Such increases in the Commitments shall become effective on the date (each such date, an “Increased Facility Closing Date”) specified in an activation notice delivered to the Administrative Agent no less than ten (10) Business Days prior to the effective date of such notice specifying the amount of the increase and the effective date thereof (or such earlier date as may be agreed by the Administrative Agent in its sole discretion). Each new lender that provides any part of any such increase in the Commitments (a Pro Forma Compliance Certificate demonstrating that“New Lender”) shall execute a New Lender Supplement (each, upon giving effect a “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such New Lender shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. Unless otherwise agreed by Administrative Agent, on a Pro Forma Basis each Increased Facility Closing Date, Borrower shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term amount of each Type of Loan (iand, in the case of Term Benchmark Loans, of each Tranche) shall rank pari passu in right of payment with the existing Term Loans and shall which would then have the same benefits of any additional guaranties been outstanding from such Lender if (x) each such Type or collateral Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) shall be treated substantially the same as (and in any event no more favorably thany) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of each such Type or Tranche requested to be so borrowed or effected had been proportionately increased, and, if applicable in connection with such increased Commitments, Borrower shall pay all amounts due under Section 2.17. The Relevant Rate applicable to any Incremental Term Benchmark Loan hereunder borrowed pursuant to the preceding sentence shall equal the Relevant Rate then applicable to the Term Benchmark Loans of the other Lenders in the same Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative agreed upon between Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each relevant Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 2 contracts
Sources: Credit Agreement (Beazer Homes Usa Inc), Credit Agreement (Beazer Homes Usa Inc)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from The Aggregate Commitments shall automatically increase by the Administrative Borrower to Acquisition Increase Amount on the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Acquisition Increase Date”) and upon which the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) have received a certificate of each Loan Party dated as of the Incremental Term Loan Effective such Acquisition Increase Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party the Borrower certifying that all of the following conditions have been fully satisfied: (i) certifying the Acquisition Closing Date shall have occurred prior to the Acquisition Termination Date in accordance with the terms of the Acquisition Agreement (without giving effect to any amendment, modification, consent or waiver thereto (including, without limitation, any updates to the exhibits, annexes and attaching schedules thereto) that is materially adverse to the resolutions adopted by interests of the Lenders (in their capacity as such), unless the Administrative Agent and the Required Lenders have delivered their prior written consent thereto, such Loan Party approving consent not to be unreasonably withheld or consenting to such increasedelayed), and (ii) certifying that, before and after giving effect to such Incremental Term Loanno Default exists, (Aiii) the representations and warranties contained in Article V (including without limitation the representation and warranties set forth in Sections 5.04(c) and 5.05) and the other Loan Documents are true and correct in all material respects on and as of such date (or if qualified by materiality or material adverse effect, true and correct in all respects; provided that the representation and warranty made in Section 5.12(a) is true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.122.15(a), the representations and warranties contained in subsections (a) and (b) of Section 5.01 5.04 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (iv) any fees and expenses required to be paid on or before the Acquisition Increase Date pursuant to the terms of the Fee Letters shall have been paid, and (v) the Administrative Agent shall have received satisfactory evidence that the Company Credit Agreement and the Rice Midstream Holdco Credit Agreement, as each of such terms is defined in the Acquisition Agreement, have been terminated and all amounts due and payable thereunder have been paid in full. Each Lender’s Commitment shall increase by its Pro Rata Share of the Acquisition Increase Amount on the Acquisition Increase Date as reflected on Schedule 2.01.
(b) Provided there exists no Default, upon notice to the Administrative Agent (which shall promptly notify the Lenders) after the earlier to occur of the Acquisition Increase Date or the Acquisition Termination Date, the Borrower may on a one-time basis request an increase in the Aggregate Commitments by an amount not exceeding $500,000,000; provided that any such request for an increase shall be in a minimum amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(c) If the Aggregate Commitments are increased in accordance with Section 2.15(b), the Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date. As a condition precedent to such increase, the Borrower shall have provided to the Administrative Agent the following, in form and substance satisfactory to the Administrative Agent:
(i) copies of corporate resolutions certified by the Secretary or Assistant Secretary of the Borrower, or such other evidence as may be satisfactory to the Administrative Agent, demonstrating that Borrower’s incurrence of indebtedness hereunder in the amount of the Aggregate Commitments as increased pursuant to Section 2.15(b) and with a maturity date of the Stated Maturity Date then in effect, has been duly authorized by all necessary corporate action, together with an opinion of counsel to the Borrower (which may be internal counsel) to such effect, and
(ii) a certificate dated as of the Increase Effective Date (in sufficient copies for each Lender) 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 V (including without limitation the representation and warranties set forth in Sections 5.04(c) and 5.05) and the other Loan Documents are true and correct in all material respects on and as of the Increase Effective Date (or if qualified by materiality or material adverse effect, true and correct in all respects; provided that the representation and warranty made in Section 5.12(a) is true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.15(c), the representations and warranties contained in subsections (a) and (b) of Section 5.04 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(cd) The Borrower shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Committed Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Commitments under this Section.
(e) This Section shall supersede any provisions in Sections 2.10 2.12 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 2 contracts
Sources: Extension Agreement and First Amendment to Second Amended and Restated Credit Agreement (EQT Corp), Credit Agreement (EQT Corp)
Increase in Commitments. In the event Borrower purchases additional assets that are added to and become part of the LGS Assets, Borrower may, at its option and subject to the conditions set forth below in this §2.7, request up to two (2) times per annum that Agent increase the aggregate Commitments to the extent of thirty percent (30%) of the documented cost of such additional assets by (i) admitting additional Lenders hereunder (each a “Subsequent Lender”) and/or (ii) increasing the Commitment of any Lender (each an “Increasing Lender”) subject to the following conditions:
(a) Provided there exists no Default each Subsequent Lender shall meet the conditions for an Eligible Assignee;
(and no Default would result therefrom)b) if requested by the applicable Lender, upon notice from the Administrative Borrower executes new Notes payable to the Administrative Agent (which shall promptly notify the Lenders)order of each Subsequent Lender, the Borrowers may from time to time, request or a new term loan or replacement Note payable to the order of each Increasing Lender;
(c) each Subsequent Lender executes and delivers to Agent a signature page to this Agreement evidencing its agreement to be bound as a Lender hereunder and each Increasing Lender executes and delivers to Agent an “Incremental Term Loan”acknowledgement of its increased Commitment;
(d) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers Borrower and Agent shall have delivered executed new Security Documents and/or modifications of the Security Documents and other Loan Documents to reflect the increase in the Commitments and additions to the Administrative Collateral and Borrower shall have paid to Agent a Pro Forma Compliance Certificate demonstrating thatany and all documentary stamp tax, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be non-recurring intangible tax or other taxes imposed in compliance connection with the financial covenants set forth recording of such modifications of the Security Documents or increase in Section 6.10; the Commitment amount and Agent shall be provided further with evidence satisfactory to it that any Term Loan all Liens in favor of Agent are and remain first priority Liens;
(ie) shall rank pari passu in right of payment with the existing Term Loans and Ultra Lease shall have been amended and/or the same benefits of any additional guaranties or collateral and (ii) Base Rent thereunder shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit have been increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver give effect to the Administrative Agent a new commitment agreement purchase of additional assets by Borrower that become part of the LGS Assets, all in form and substance satisfactory to Agent;
(f) after giving effect to the Administrative admission of any Subsequent Lender or the increase in the Commitment of any Increasing Lender, the sum of all Commitments does not exceed $78,000,000;
(g) each increase in the total Commitments shall be in the amount of at least $1,000,000;
(h) all of the representations and warranties of Borrower and CORR 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);
(i) no Default or Event of Default exists or would result therefrom;
(j) no Lender, including, but not limited to KeyBank, shall be an Increasing Lender without the written consent of such Lender;
(k) Borrower shall have delivered to Agent a Compliance Certificate setting forth in reasonable detail computations evidencing compliance, on a proforma basis giving effect to the Commitment increase, with the covenants contained in §9; and
(l) Borrower shall enter into Hedge Agreements with respect to such increase in the Commitments having terms reasonably satisfactory to Agent taking into account the terms of the existing Hedge Agreements; and
(m) 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 Commitments. After adding the Commitment of any Increasing Lender or Subsequent Lender, Agent shall promptly provide each Lender and Borrower with a new Schedule 1.1 to this Agreement (and each Lender acknowledges that its counselCommitment Percentage under Schedule 1.1 and allocated portion of the Outstanding Loans will change in accordance with its pro rata share of the increased Term Commitments.
(b) If Unless and until the total Commitments are have been increased in accordance with this Section§2.7, Borrower shall not be permitted any disbursement beyond the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders amount of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent Commitments in effect immediately prior to such proposed increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 2 contracts
Sources: Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.), Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower Subject to the Administrative Agent (which shall promptly notify the Lenders)conditions set forth below, the Borrowers Borrower may from time to timetime request Lenders to increase their respective Commitments or obtain Commitments from new Lenders; provided that, request in each such instance, each new or existing Lender providing a new term loan or increased Commitment agrees in writing to such new or increased Commitment (an “Incremental Term Loan”) which agreement may be provided or withheld in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers each Lender’s sole and absolute discretion). No Lender shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties commitment or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing obligation to increase its Commitment or right of first refusal to provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan or increased Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the The increased or new Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the become effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier datedate on which the relevant Subsequent Advances shall be made (a “Subsequent Advance Date”), as agreed by the Lenders providing such Commitments and Borrower; provided that such Commitments shall be established, and except that for purposes of this Section 2.12Subsequent Advances may be made in respect thereof, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms thatonly if, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, Commitments and such Lender is then Subsequent Advances:
(i) the aggregate principal amount of all Subsequent Advances made hereunder (excluding any Net PIK Amount that has been added to the principal amount of the Subsequent Advances) shall not exceed the Maximum Subsequent Advance Amount; and
(ii) each of the conditions set forth in possession of a Noteclauses (a)(iv), then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4d), (e), (g) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5h) payment of any applicable fee related to such increase Section 4.01 (including, without limitation, any applicable arrangement, upfront and/or administrative fee)the “Specified Conditions”) shall be satisfied.
(c) This Section Each new Lender shall supersede any provisions execute a joinder agreement to this Agreement with B▇▇▇▇▇▇▇ and Administrative Agent, in Sections 2.10 or 10.01 form and substance reasonably satisfactory to the contraryeach of them.
(d) The BorrowersSubsequent Advances established pursuant to this Section 2.19 shall constitute Advances under, Guarantorsand shall be entitled to all the benefits afforded by, Administrative Agent and subject to all of the obligations of Lenders shall enter into an amendment of created under, this Agreement and the other Margin Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed Documentation. The terms and secured by the other Loan Documents (the “Incremental Term Loan Amendment”)conditions of any Subsequent Advances hereunder, and all Lenders not providing the Incremental Term any Margin Loan hereby consent to such limited scope amendment without future consent rightsDocumentation entered into in connection therewith, provided that the pricing and maturity shall be determined by substantially identical to the Borrowers terms and conditions of the Initial Advances and the Lendersother, analogous Margin Loan Documentation. AdditionallyNotwithstanding anything in Section 10.01 to the contrary, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent may make any other documentation as related administrative or technical changes to the Margin Loan Documentation that Borrower and Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be determine are necessary or appropriate in to effectuate this Section 2.19 and that do not materially and adversely affect the reasonable opinion rights or obligations of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanany Lender.
Appears in 2 contracts
Sources: Margin Loan Agreement (Endeavor Group Holdings, Inc.), First Amendment Agreement (Endeavor Group Holdings, Inc.)
Increase in Commitments. Subject to the conditions set forth below in this Section, at any time on or after the expiration of the Term Loan Availability Period, the Borrower shall have the right to increase the Total Commitment Amount, which right may be exercised no more than four (a4) Provided there exists no Default (and no Default would result therefrom)times during the term of the Loan, upon by providing written notice from the Administrative Borrower to the Administrative Agent (Agent, which notice shall promptly notify the Lenders), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000be irrevocable once given; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon after giving effect on a Pro Forma Basis to any such Incremental Term Loan, increases the Loan Parties would Total Commitment Amount shall not exceed $500,000,000. Each such increase in the Total Commitment Amount must be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The an aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (25,000,000 and in integral multiples of $10,000,000 5,000,000 in excess thereof), or such other amounts as Administrative Agent may approve from time to time. To achieve The Administrative Agent, in consultation with the full amount Borrower, shall manage all aspects of a requested Incremental Term Loanthe syndication of such increase in the Commitments, including decisions as to the Borrowers may solicit increased commitments from selection of the existing Lenders and/or invite additional Eligible Assignees other banks, financial institutions and other institutional lenders to become Lenders; providedbe approached with respect to such increase and the allocations of the increase in the Commitments among such existing Lenders and/or other banks, however, that no existing financial institutions and other institutional lenders. No Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing any way whatsoever to increase its Commitment or provide a new Commitment pursuant Commitment, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee. Effecting the increase of the Commitments under this Section 2.12 is subject to the following conditions precedent: (an “Incremental Term x) no Default or Event of Default shall exist, (y) the representations and warranties made or deemed made by the Borrower or any other Loan Commitment”) shallParty in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in connection therewithwhich case such representation or warranty shall be true and correct in all respects) on the effective date of such increase except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and accurate in all material respects on and as of such earlier date (except in the case of a representation or warranty qualified by materiality, deliver to in which case such representation or warranty shall be true and correct in all respects)) and except for changes in factual circumstances specifically and expressly permitted hereunder or the other Loan Documents, and (z) the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent have received each of the following following, in form and substance satisfactory to the Administrative Agent: (1i) a certificate if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrower to authorize such increase and (B) all corporate, partnership, member, or other necessary action taken by each Loan Party dated as of Guarantor authorizing the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer guaranty of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, ; and (ii) certifying that, before and after giving effect an opinion of counsel to such Incremental Term Loan, (A) the representations and warranties contained in Article V Borrower and the other Loan Documents are true and correct as of such earlier dateGuarantors (organized in Delaware), and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer addressed to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents covering such matters as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured reasonably requested by the other Loan Documents (the “Incremental Term Loan Amendment”)Administrative Agent, and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined (iii) new Notes executed by the Borrowers Borrower, payable to any new Lender, and replacement Notes executed by the LendersBorrower, payable to any existing Lenders increasing their Commitments, in the amount of such Lender’s Commitment at the time of the effectiveness of the applicable increase in the aggregate amount of the Commitments. Additionally, In connection with any increase in the Borrowers, Guarantors and each aggregate amount of the Commitments pursuant to this Section 2.8 any Lender becoming a party hereto shall execute such documents and deliver to Administrative Agent any other documentation agreements as the Administrative Agent may reasonably request. Any amendment hereto for such an increase shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without only require the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion signatures of the Administrative Agent, Borrower and each Lender being added or increasing its commitment, provided, however, that if any such amendment additionally amends, supplements, restates or otherwise modifies any other term or provision of this Agreement or the other Loan Documents, such amendment shall also include the signatures of any additional Lenders and the Borrowers(including, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agentif required, the Lenders and the Borrowers in connection with the establishment of such Incremental Term LoanRequisite Lenders) as required hereunder.
Appears in 2 contracts
Sources: Loan Agreement (Equity One, Inc.), Loan Agreement (Equity One, Inc.)
Increase in Commitments. (a) Provided there exists Subject to the conditions set forth below, Altair Engineering may, upon at least ten (10) days (or such other period of time agreed to between the Administrative Agent and Altair Engineering) prior written notice to the Administrative Agent, increase the Aggregate Revolving Commitments from time to time, either by designating a lender not theretofore a Lender to become a Lender (such designation to be effective only with the prior written consent of the Administrative Agent which shall not be unreasonably withheld) or by agreeing with an existing Lender that such Lender’s Revolving Commitment shall be increased (thus increasing the Aggregate Revolving Commitments); provided that:
(i) both before and after giving effect to such increase on a pro forma basis, no Default or Unmatured Default shall have occurred and be continuing hereunder and the Leverage Ratio is at least 0.25 below the level then required under Section 6.13;
(ii) The representations and no Default would result therefromwarranties contained in Article VII are true and correct as of the effective date of such increase in all material respects except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date;
(iii) the amount of each such increase in the Aggregate Revolving Commitments shall not be less than $5,000,000 (or such other minimum amount agreed to between the Administrative Agent and Altair Engineering), upon notice from and aggregate amount of all increases to the Aggregate Revolving Commitments plus all New Credit Facilities shall not exceed $25,000,000;
(iv) Altair Engineering and any applicable Lender or lender not theretofore a Lender, shall execute and deliver to the Administrative Borrower Agent, a lender addition and acknowledgement Agreement in form and substance satisfactory to the Administrative Agent (which shall promptly notify the Lenders)each such agreement, the Borrowers may from time to time, request a new term loan (an “Incremental Term LoanLender Addition and Acknowledgment Agreement”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to and acknowledged by the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan Altair Engineering;
(iv) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required in any way to increase any of its Commitments;
(vi) the Administrative Agent shall consent to such increase, which consent shall not be unreasonably withheld; and
(vii) the Administrative Agent shall have received such supplemental opinions, resolutions, certificates and other documents as the Administrative Agent may reasonably request. Upon the execution, delivery, acceptance and recording of the Lender Addition and Acknowledgement Agreement, from and after the effective date specified in a Lender Addition and Acknowledgement Agreement, such existing Lender shall have a Revolving Commitment as therein set forth or such other Lender shall become a Lender with a Revolving Commitment as therein set forth and all the rights and obligations of a Lender with such a Revolving Commitment hereunder. Upon its receipt of a Lender Addition and Acknowledgement Agreement together with any note or notes, if requested, subject to such addition and assumption and the written consent to such addition and assumption, the Administrative Agent shall, if such Lender Addition and Acknowledgement Agreement has been completed and the other conditions described in this Section 2.25(a) have been satisfied: (x) accept such Lender Addition and Acknowledgement Agreement; (y) record the information contained therein in the Register; and (z) give prompt notice thereof to the Lenders and Altair Engineering and deliver to the Lenders a schedule reflecting the new Commitments. The Lenders (new or existing) shall accept an increase assignment from the existing Lenders, and the existing Lenders shall make an assignment to the new or existing Lender accepting a new or increased Revolving Commitment, of a direct or participation interest in its Commitment each then outstanding Loans and Letter of Credit such that, after giving effect thereto, all outstanding Credit Exposure (other than Ancillary Facility Exposure) hereunder is held ratably by the Lenders in proportion to their respective Revolving Commitments. Assignments pursuant to this the preceding sentence shall be made in exchange for the principal amount assigned plus accrued and unpaid interest and facility and letter of credit fees. Altair Engineering shall make any payments under Section 2.12 unless it specifically consents 2.17 resulting from such assignments.
(b) Subject to the conditions set forth below, Altair Engineering may, upon at least ten (10) days (or such other period of time agreed to between the Administrative Agent and Altair Engineering) prior written notice to the Administrative Agent, request a new credit facility which is a revolving credit facility, a term loan or other credit facility (a “New Credit Facility”); provided that:
(i) both before and after giving effect to such increase New Credit Facility on a pro forma basis, no Default or Unmatured Default shall have occurred and be continuing hereunder and the Leverage Ratio is at least 0.25 below the level then required under Section 6.13;
(ii) the representations and warranties contained in writing. Any Article VII are true and correct as of the effective date of such New Credit Facility in all material respects except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date;
(iii) the amount of each such New Credit Facility shall not be less than $5,000,000 (or such other minimum amount agreed to between the Administrative Agent and Altair Engineering), and the aggregate amount of all increases to the Aggregate Revolving Commitments under Section 2.25(a) plus all New Credit Facilities shall not exceed $25,000,000;
(iv) Altair Engineering and any applicable Lender or Eligible Assignee agreeing to increase its Commitment or provide lender not theretofore a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shallLender, in connection therewith, shall execute and deliver to the Administrative Agent Agent, a new commitment agreement Lender Addition and Acknowledgement Agreement, in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, acknowledged by the Administrative Agent and Altair Engineering;
(v) no existing Lender shall be obligated in any way to make or participate in any New Credit Facility;
(vi) the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent consent to such increase, in addition to any deliveries pursuant to subsection which consent shall not be unreasonably withheld;
(avii) above, the Borrowers shall deliver to the Administrative Agent each of shall have received such supplemental opinions, resolutions, certificates and other documents as the following in form Administrative Agent may reasonably request;
(viii) the interest rates and substance satisfactory fees and other terms applicable to the New Credit Facility shall be determined by the Administrative Agent: , Altair Engineering, and the lenders thereunder;
(1ix) a certificate of each Loan Party dated as the loans and other advances under such New Credit Facilities shall constitute Loans and credit extensions hereunder for all purposes of the Incremental Term Loan Effective Date Documents;
(in sufficient copies for each Lenderx) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents may be amended in a writing executed and acknowledges delivered by Altair Engineering and reaffirms that, after giving the Administrative Agent to reflect any changes necessary to give effect to such increaseNew Credit Facility in accordance with its terms as set forth herein, it which may include the addition of such New Credit Facility as a separate facility; and
(xi) such New Credit Facility is bound by all on the same terms of this Agreement and the other Loan Documents; (3) if the Incremental conditions as Term Loan is being provided by an existing LenderA, and such Lender is then except as set forth in possession of a Noteclause (vii), then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4viii) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5x) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 above or 10.01 to the contrary.
(d) The Borrowers, Guarantors, extent satisfactory to the Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term LoanAltair Engineering.
Appears in 2 contracts
Sources: Credit Agreement (Altair Engineering Inc.), Credit Agreement (Altair Engineering Inc.)
Increase in Commitments. (a) Provided there exists no Default The Borrower may by written notice to Administrative Agent elect to request, at any time following the Amendment No. 6 Effective Date, an increase to the existing Commitments (and no Default would result therefromany such increase, the “New Commitments”) by an amount not in excess of U.S.$50,000,000 in the aggregate. Such New Commitments shall not be less than U.S.$10,000,000 individually (or such lesser amount which shall be approved by Administrative Agent), upon and shall be in integral multiples of U.S.$1,000,000 in excess of that amount. Each such notice from shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be effective, which shall be a date not less than (10) Business Days after the date on which such notice is delivered to Administrative Agent, and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Lender”) to whom the Borrower proposes any portion of such New Commitments be allocated and the amounts of such allocations; provided any Lender approached to provide all or a portion of the New Commitments, may elect or decline, in its sole discretion, to provide a New Commitment; provided, further, that any New Lender shall be acceptable to the Administrative Agent Agent. Such New Commitments shall become effective as of such Increased Amount Date; provided that (which 1) no Default or Event of Default shall promptly notify the Lenders), the Borrowers may from time exist on such Increased Amount Date immediately prior to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon or after giving effect on a Pro Forma Basis to such Incremental Term Loan, New Commitments; (2) both immediately prior to and after giving effect to such New Commitments each of the Loan Parties would conditions set forth in Section 4.02 shall be satisfied; (3) the Borrower shall be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated 7.11 both as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer last day of such Loan Party (i) certifying the most recently ended fiscal quarter and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and immediately after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increaseNew Commitments; (4) if the Incremental Term Loan is being provided by New Commitments shall be effected pursuant to one or more joinder agreements substantially in the form of Exhibit G (a new Lender, a Note in favor of such Lender if so requested by such Lender; “Joinder Agreement”) executed and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured delivered by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. AdditionallyBorrower, the Borrowers, Guarantors New Lender and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms each of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may which shall be necessary or appropriate recorded in the reasonable opinion of Register and each New Lender shall be subject to the Administrative Agent, the Lenders and the Borrowers requirements set forth in connection with the establishment of such Incremental Term Loan.Section 3.01; and
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Atlantica Sustainable Infrastructure PLC)
Increase in Commitments. Subject to the terms and conditions set forth herein, the Borrower Representative shall have the one-time right, to be exercised at any time prior to the earlier of (ai) Provided there exists no Default the date that is two (2) years following the Closing Date or (ii) the exercise of its option to decrease the Aggregate Committed Amount under Section 2.01(c) below, cause an increase in the Aggregate Committed Amount by up to Twenty Million Dollars ($20,000,000) (to an aggregate amount not more than One Hundred Twenty Million Dollars ($120,000,000)); provided that such increase shall be conditioned and no Default would result therefrom), effective upon notice the satisfaction of the following conditions:
(i) the Borrowers shall obtain commitments for the amount of the increase from existing Lenders or other commercial banks or financial institutions reasonably acceptable to the Administrative Borrower Agent, which other commercial banks and financial institutions shall join in this Credit Agreement as Lenders by a Lender Joinder Agreement substantially in the form of Exhibit F attached hereto or other arrangement reasonably acceptable to the Administrative Agent (which it being understood that in no case shall promptly notify any Lender be required to increase its Commitment without its written consent);
(ii) if any Advances are outstanding at the Lenders)time of any such increase, the Borrowers shall make such payments and adjustments on the Advances (including payment of any break-funding amounts owing under Section 3.05) as may from time be necessary to timegive effect to the revised commitment percentages and commitment amounts;
(iii) the Borrowers shall pay to the Administrative Agent the following fees: (1) for payment to each Lender making such increased commitment, request a new term loan commitment fee equal to one percent (1%) of the increase to the Aggregate Committed Amount of such Lender and (2) for payment to Administrative Agent for its own account, an “Incremental Term Loan”arrangement fee equal to one-half of one percent (.5%) in an aggregate times the amount for all such Incremental Term Loans not of the increase to exceed $150,000,000; provided, however, that the Aggregate Committed Amount.
(iv) the Borrowers shall have delivered executed any new or amended and restated Notes (to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis extent requested by the Lenders) to such Incremental Term Loan, reflect the Loan Parties would be in compliance with revised commitment amounts; and
(v) the financial covenants conditions to the making of an Advance set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) 4.02 shall be treated substantially the same as (and in satisfied. In connection with any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing the Commitments, Schedule 2.01 shall be revised to increase its reflect the modified Commitments and Commitment or Percentages of the Lenders, and the DAL:0535130/00080:1910701v7 Borrowers shall provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shallsupporting corporate resolutions, in connection therewithlegal opinions, deliver to the Administrative Agent a new commitment agreement in form promissory notes and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, other items as may be reasonably requested by the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loantherewith.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the The Borrowers may from time to timetime add one or more tranches of term loans or increase outstanding tranches of term loans (each an “Incremental Term Facility”) and/or increase commitments under any Revolving Facility (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Company by an agreement in writing entered into by the Borrowers, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (and, for the avoidance of doubt, shall not require the consent of any other Lender) (each an “Incremental Facility Amendment”); provided that:
(a) the aggregate principal amount of all Incremental Facilities established under this Section 2.16 following the Fifth Amendment Effective Date shall not exceed the sum of:
(i) $150,000,000; plus
(ii) an unlimited amount so long as, in the case of this clause (ii), after giving effect to the relevant Incremental Facility on a Pro Forma Basis, the Consolidated Secured Leverage Ratio does not exceed 2.75:1.00 (assuming the full amount of such Incremental Facility is fully drawn and without “netting” the cash proceeds of such Incremental Facility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Company); provided that any Incremental Facility may be incurred under either sub-clauses (i) or sub-clause (ii) of this clause (a) as selected by the Company in its sole discretion and if any Incremental Facility is intended to be incurred in part under both sub-clauses (i) and (ii) then the permissibility of the portion of such Incremental Facility to be incurred under sub-clause (ii) shall first be determined without giving effect to the portion of such Incremental Facility incurred under sub-clause (i), but giving full Pro Forma Effect to the use of proceeds of the entire amount of such Incremental Facility;
(b) no Event of Default shall exist on the effective date of any Incremental Facility or would exist after giving effect to any Incremental Facility;
(c) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such ▇▇▇▇▇▇’s sole and absolute discretion;
(d) each Incremental Facility shall be in an aggregate principal amount of at least $10,000,000 and each Incremental Facility Commitment shall be in a minimum principal amount of at least $1,000,000, in the case of an Incremental Revolving Increase, and at least $1,000,000 in the case of an Incremental Term Facility (or, in each case, such lesser amounts as the Administrative Agent may agree);
(e) each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(f) the Borrowers shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such increase signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Company, certifying CHAR1\1982698v3 that, before and after giving effect to such increase, (1) the representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) as of such earlier date, (2) no Default or Event of Default exists and (3) such Incremental Facility or Incremental Facilities have been incurred in compliance with this Agreement;
(ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility; and
(iii) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility;
(g) the Administrative Agent shall have received documentation from each Person providing a new commitment in respect of such requested Incremental Facility or Incremental Facilities (each such commitment, an “Incremental Facility Commitment”) evidencing its Incremental Facility Commitment and its obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(h) in the case of an Incremental Term Facility, the Administrative Agent shall have determined in its reasonable discretion whether such Incremental Term Facility consists of a tranche A term loan (an “Incremental Tranche A Term LoanFacility”) or a tranche B term loan (an “Incremental Tranche B Term Facility”);
(i) in the case of an aggregate amount Incremental Term Facility that is an Incremental Tranche A Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for all such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Revolving Loans and (2) the final maturity date of any then outstanding Incremental Tranche A Term Loan; and
(B) the Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of any then outstanding Incremental Tranche A Term Loan;
(ii) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(iii) such Incremental Term Facility shall share ratably in any prepayments of the other Term Facilities pursuant to exceed $150,000,000Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for the then outstanding Term Facilities); providedand CHAR1\1982698v3
(iv) if such Incremental Term Facility consists of one or more new tranches of term loans, howeverthe other terms thereof, if not consistent with the terms applicable to the Term B Loan, shall be reasonably acceptable to the Administrative Agent;
(j) in the case of an Incremental Term Facility that is an Incremental Tranche B Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Term B Loan and (2) the final maturity date of any then outstanding Incremental Tranche B Term Loan;
(B) the Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term B Loan or any then outstanding Incremental Tranche B Term Loan;
(C) if the All-In-Yield on such Incremental Term Facility exceeds the All-In-Yield on the Term B Loan or any then outstanding Incremental Tranche B Term Facility by more than ½ of one percent (1.00%) per annum, then the Applicable Rate or fees payable by the Borrowers with respect to the Term B Loan and each then outstanding Incremental Tranche B Term Facility shall on the effective date of such Incremental Term Facility be increased to the extent necessary to cause the All-In-Yield on the Term B Loan and each then outstanding Incremental Tranche B Term Facility to be not more than ½ of one percent (1.00%) less than the All-In-Yield on such Incremental Term Facility (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Borrowers); provided that, notwithstanding anything to the contrary in the foregoing clause (C), the provisions of this clause (C) shall not apply to any Incremental Tranche B Term Facility established after the first twelve (12) months following the Closing Date in relation to the Term B Loan or any then existing Incremental Tranche B Term Facility;
(ii) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(iii) such Incremental Term Facility shall share ratably in any prepayments of the Term B Loan and any then outstanding Incremental Tranche B Term Loan pursuant to Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for the then outstanding Term Facilities); and
(iv) if such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the terms applicable to the Term B Loan, shall be reasonably acceptable to the Administrative Agent;
(k) in the case of any Incremental Revolving Increase with respect to the Revolving Facility:
(i) such Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins, provided that, subject to clause (ii) below, such Incremental Revolving Increase may be issued with a utilization fee and/or CHAR1\1982698v3 additional unused fee payable solely to the Lenders under such Incremental Revolving Increase) applicable to the Revolving Facility; and
(ii) the existing Lenders under the Revolving Facility shall on the effective date of such Incremental Revolving Increase make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility to the Lenders providing such Incremental Revolving Increase and the Administrative Agent may make such adjustments to the Register as are necessary so that, after giving effect to such assignments and adjustments, each Lender under the Revolving Facility (including the Lenders providing such Incremental Revolving Increase) will hold revolving loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility equal to its pro rata share thereof; and
(l) the Company shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis to (without “netting” the cash proceeds of such Incremental Term LoanFacility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Company and assuming, in the case of any Incremental Facility that consists of an Incremental Revolving Increase, the full amount of such Incremental Facility is fully drawn) the Loan Parties would be in compliance with Pro Forma Compliance; provided, further, that the financial covenants conditions set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) foregoing proviso shall be treated substantially subject to the same as (and provisions of Section 1.10 in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount case of any Incremental Term Loan hereunder Facility used to finance a Limited Condition Acquisition. The Incremental Facility Commitments and credit extensions thereunder shall constitute Commitments and Credit Extensions under, and shall be in a minimum amount of $10,000,000 (entitled to all the benefits afforded by, this Agreement and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loanother Loan Documents, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) and shall, in connection therewithwithout limiting the foregoing, deliver to benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents. The Lenders hereby authorize the Administrative Agent a new commitment agreement in form to enter into, and substance satisfactory the Lenders agree that this Agreement and the other Loan Documents shall be amended by, such Incremental Facility Amendments to the extent (and only to the extent) the Administrative Agent and its counsel.
(b) If deems necessary in order to establish Incremental Facilities on terms consistent with and/or to effect the Commitments are increased provisions of this Section 2.16. This Section 2.16 shall supersede any provisions in accordance with this Section, Section 10.01 to the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loancontrary. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver each Lender as to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate effectiveness of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Facility Amendment.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Sources: Credit Agreement (Celestica Inc)
Increase in Commitments. (a) Provided there exists no Default The Borrower shall have the right to request increases in the aggregate amount of the Commitments or one or more additional tranches of commitments in the aggregate amount of $100,000,000 (and no Default would result therefrom)each such increase, upon a “Commitment Increase”) by providing written notice from the Administrative Borrower to the Administrative Agent (Agent, which notice shall promptly notify the Lenders), the Borrowers may from time to time, be irrevocable once given and shall specify whether such request a new term loan (an “Incremental Term Loan”) in an aggregate amount is for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right an increase of payment with the existing Term Loans and shall have the same benefits of any additional guaranties Commitments or collateral and (ii) shall be treated substantially an additional tranche of commitments; provided that after giving effect to any and all such Commitment Increases, the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder Commitments shall not exceed Six Hundred Million Dollars ($600,000,000). Each such Commitment Increase must be in a an aggregate minimum amount of $10,000,000 25,000,000 (or such lesser amount as the Borrower and the Administrative Agent may agree in writing) and integral multiples of $10,000,000 5,000,000 in excess thereof). To achieve The Administrative Agent, in consultation with the full amount Borrower, shall manage all aspects of a requested Incremental Term Loanthe syndication of such Commitment Increase, including decisions as to the Borrowers may solicit increased commitments from selection of the existing Lenders and/or invite additional Eligible Assignees other banks, financial institutions and other institutional lenders to be approached with respect to such Commitment Increase and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders and the Fees to be paid for such Commitment Increase; provided that, the consent of the Borrower (not to be unreasonably withheld, conditioned or delayed) shall be required for all banks, financial institutions and institutional lenders that agree to provide any such Commitment Increase in the event the consent of the Borrower would be required if such bank, financial institution or institutional lender were to become Lenders; provided, however, that no existing a Lender pursuant to Section 13.5(b)(iii)(A). No Lender shall be obligated and/or required in any way whatsoever to accept an increase in its provide a Commitment pursuant Increase, and any new Lender becoming a party to this Section 2.12 unless it specifically consents to Agreement in connection with any such increase in writing. Any Lender or requested Commitment Increase must be an Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this subject to, and in accordance with, the provisions of Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel13.5(b).
(b) If The effectiveness of any Commitment Increase under this Section is subject to the Commitments are increased following conditions precedent (subject, in accordance the case of a Commitment Increase incurred to finance a Limited Condition Transaction, to Section 1.6; provided, that any such request for a Commitment Increase by the Borrower shall specify that such condition is to apply): (w) no Default or Event of Default (or, in the case of a Commitment Increase incurred to finance a Limited Condition Transaction, no Event of Default described in clause (a), (e) or (f) of Section 11.1) shall exist and be continuing on the effective date of such Commitment Increase, (x) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such Commitment Increase except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder; provided, that in the case of a Commitment Increase incurred to finance a Limited Condition Transaction, such representations and warranties shall be limited to the Specified Representations, (y) payment of any and all Fees required in connection with this Sectionsuch Commitment Increase, and (z) the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent have received each of the following following, in form and substance reasonably satisfactory to the Administrative Agent: (1i) a certificate if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrower to authorize such increase and (B) all corporate or other necessary action taken by each Loan Party dated as of Guarantor, if any, authorizing the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer guaranty of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and Commitment Increase; (ii) certifying that, before and after giving effect an opinion of counsel to such Incremental Term Loan, (A) the representations and warranties contained in Article V Borrower and the other Loan Documents are true and correct as of such earlier dateParties, and except that for purposes of this Section 2.12, addressed to the representations Administrative Agent and warranties contained in subsections (a) the Lenders covering such matters as reasonably requested by the Administrative Agent; and (biii) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and extent requested by the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new applicable Lender, a new Note executed by the Borrower, payable to such new Lenders and replacement Notes executed by the Borrower, payable to any existing Lenders providing a Commitment Increase, in favor the amount of such Lender if so requested by such Lender; L▇▇▇▇▇’s Commitment at the time of the effectiveness of the applicable Commitment Increase and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)a Beneficial Ownership Certification.
(c) This In connection with any Commitment Increase pursuant to this Section 2.13, any Lender becoming a party hereto shall supersede (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any provisions in Sections 2.10 or 10.01 Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the contraryAdministrative Agent its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Act.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into Each Commitment Increase with respect to an additional tranche of Commitments may be made hereunder pursuant to an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents restatement (the each, an “Incremental Term Loan Amendment”)) of this Agreement and, as appropriate, the other Loan Documents, executed by Borrower, each Lender participating in such tranche and all Lenders not providing the Administrative Agent. Each Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan AmendmentAmendment may, without the consent of any other LenderLenders, may 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, to effect the Lenders provisions of this Section 2.13. All such incremental Term Loans (i) shall rank pari passu in right of payment with the other Loans, (ii) shall not mature earlier than the latest Term Loan Maturity Date then in effect for any then-existing Loans (but may have amortization prior to such date), and (iii) shall be (x) treated substantially the Borrowerssame as (and in any event no more favorably than), to implement to and (y) consistent with the terms and conditions applicable to, the initial Loans made or deemed made on the Effective Date. Each applicable incremental Lender shall fund the applicable incremental Loans in accordance with the requirements of the applicable Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term LoanLoan Amendment.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the The Borrowers may from time to timetime add one or more tranches of term loans or increase outstanding tranches of term loans (each an “Incremental Term Facility”) and/or increase commitments under any Revolving Facility (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Company by an agreement in writing entered into by the Borrowers, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (and, for the avoidance of doubt, shall not require the consent of any other Lender) (each an “Incremental Facility Amendment”); provided that:
(a) the aggregate principal amount of all Incremental Facilities established under this Section 2.16 shall not exceed the sum of:
(i) $150,000,000; plus
(ii) an unlimited amount so long as, in the case of this clause (ii), after giving effect to the relevant Incremental Facility on a Pro Forma Basis, the Consolidated Secured Leverage Ratio does not exceed 2.50:1.00 (assuming the full amount of such Incremental Facility is fully drawn and without “netting” the cash proceeds of such Incremental Facility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Company); provided that any Incremental Facility may be incurred under either sub-clauses (i) or sub-clause (ii) of this clause (a) as selected by the Company in its sole discretion and if any Incremental Facility is intended to be incurred in part under both sub-clauses (i) and (ii) then the permissibility of the portion of such Incremental Facility to be incurred under sub-clause (ii) shall first be determined without giving effect to the portion of such Incremental Facility incurred under sub-clause (i), but giving full Pro Forma Effect to the use of proceeds of the entire amount of such Incremental Facility;
(b) no Event of Default shall exist on the effective date of any Incremental Facility or would exist after giving effect to any Incremental Facility;
(c) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(d) each Incremental Facility shall be in an aggregate principal amount of at least $10,000,000 and each Incremental Facility Commitment shall be in a minimum principal amount of at least $1,000,000, in the case of an Incremental Revolving Increase, and at least $1,000,000 in the case of an Incremental Term Facility (or, in each case, such lesser amounts as the Administrative Agent may agree);
(e) each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(f) the Borrowers shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such increase signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Company, certifying that, before and after giving effect to such increase, (1) the representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) as of such earlier date, (2) no Default or Event of Default exists and (3) such Incremental Facility or Incremental Facilities have been incurred in compliance with this Agreement;
(ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility; and
(iii) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility;
(g) the Administrative Agent shall have received documentation from each Person providing a new commitment in respect of such requested Incremental Facility or Incremental Facilities (each such commitment, an “Incremental Facility Commitment”) evidencing its Incremental Facility Commitment and its obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(h) in the case of an Incremental Term Facility, the Administrative Agent shall have determined in its reasonable discretion whether such Incremental Term Facility consists of a tranche A term loan (an “Incremental Tranche A Term LoanFacility”) or a tranche B term loan (an “Incremental Tranche B Term Facility”);
(i) in the case of an aggregate amount Incremental Term Facility that is an Incremental Tranche A Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for all such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Revolving Loans and (2) the final maturity date of any then outstanding Incremental Tranche A Term Loan; and
(B) the Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of any then outstanding Incremental Tranche A Term Loan;
(ii) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(iii) such Incremental Term Facility shall share ratably in any prepayments of the other Term Facilities pursuant to exceed $150,000,000Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for the then outstanding Term Facilities); and
(iv) if such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the terms applicable to the Term B Loan, shall be reasonably acceptable to the Administrative Agent;
(j) in the case of an Incremental Term Facility that is an Incremental Tranche B Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Term B Loan and (2) the final maturity date of any then outstanding Incremental Tranche B Term Loan;
(B) the Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term B Loan or any then outstanding Incremental Tranche B Term Loan;
(C) if the All-In-Yield on such Incremental Term Facility exceeds the All-In-Yield on the Term B Loan or any then outstanding Incremental Tranche B Term Facility by more than ½ of one percent (1.00%) per annum, then the Applicable Rate or fees payable by the Borrowers with respect to the Term B Loan and each then outstanding Incremental Tranche B Term Facility shall on the effective date of such Incremental Term Facility be increased to the extent necessary to cause the All-In-Yield on the Term B Loan and each then outstanding Incremental Tranche B Term Facility to be not more than ½ of one percent (1.00%) less than the All-In-Yield on such Incremental Term Facility (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Borrowers); provided, however, that the Borrowers provisions of this clause (C) shall not apply to any Incremental Term Facility provided after the first twelve (12) months following the Closing Date;
(ii) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(iii) such Incremental Term Facility shall share ratably in any prepayments of the Term B Loan and any then outstanding Incremental Tranche B Term Loan pursuant to Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for the then outstanding Term Facilities); and
(iv) if such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the terms applicable to the Term B Loan, shall be reasonably acceptable to the Administrative Agent;
(k) in the case of any Incremental Revolving Increase with respect to the Revolving Facility:
(i) such Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins, provided that, subject to clause (ii) below, such Incremental Revolving Increase may be issued with a utilization fee and/or additional unused fee payable solely to the Lenders under such Incremental Revolving Increase) applicable to the Revolving Facility; and
(ii) the existing Lenders under the Revolving Facility shall on the effective date of such Incremental Revolving Increase make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility to the Lenders providing such Incremental Revolving Increase and the Administrative Agent may make such adjustments to the Register as are necessary so that, after giving effect to such assignments and adjustments, each Lender under the Revolving Facility (including the Lenders providing such Incremental Revolving Increase) will hold revolving loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility equal to its pro rata share thereof; and
(l) the Company shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis to (without “netting” the cash proceeds of such Incremental Term LoanFacility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Company and assuming, in the case of any Incremental Facility that consists of an Incremental Revolving Increase, the full amount of such Incremental Facility is fully drawn) the Loan Parties would be in compliance with Pro Forma Compliance; provided, further, that the financial covenants conditions set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) foregoing proviso shall be treated substantially subject to the same as (and provisions of Section 1.10 in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount case of any Incremental Term Loan hereunder Facility used to finance a Limited Condition Acquisition. The Incremental Facility Commitments and credit extensions thereunder shall constitute Commitments and Credit Extensions under, and shall be in a minimum amount of $10,000,000 (entitled to all the benefits afforded by, this Agreement and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loanother Loan Documents, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) and shall, in connection therewithwithout limiting the foregoing, deliver to benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents. The Lenders hereby authorize the Administrative Agent a new commitment agreement in form to enter into, and substance satisfactory the Lenders agree that this Agreement and the other Loan Documents shall be amended by, such Incremental Facility Amendments to the extent (and only to the extent) the Administrative Agent and its counsel.
(b) If deems necessary in order to establish Incremental Facilities on terms consistent with and/or to effect the Commitments are increased provisions of this Section 2.16. This Section 2.16 shall supersede any provisions in accordance with this Section, Section 10.01 to the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loancontrary. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver each Lender as to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate effectiveness of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Facility Amendment.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Sources: Credit Agreement (Celestica Inc)
Increase in Commitments. (a) Provided there exists Subject to the conditions ------------------------ set forth in this Section 2.18 and provided no Default (or Event of Default shall have occurred and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)be continuing, the Borrowers Revolving Credit Commitments may be increased from time to time, upon the request of the Borrower, if an existing Lender agrees to increase its Revolving Credit Commitment or any other financial institution or bank (a new term loan (an “Incremental Term Loan”"New Lender") in an agrees to provide additional Revolving Credit Commitments. In no event shall the aggregate principal amount for all such Incremental Term Loans not to of the Revolving Credit Commitments exceed $150,000,000; provided, however, that 65,000,000. Increases in the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder Revolving Credit Commitments shall be in a minimum amount increments of $10,000,000 (1,000,000 and in integral multiples the initial minimum commitment of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing any New Lender shall not be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counselless than $5,000,000.
(b) If the any such additional Revolving Credit Commitments are increased provided by a New Lender, then such New Lender shall execute a joinder or other agreement, in accordance with this Sectionform and substance reasonably satisfactory to the Administrative Agent, wherein the New Lender agrees to be bound by all the terms and conditions of the Credit Agreement, as amended, applicable to Lenders and the New Lender shall thereafter be a "Lender" for all purposes of the Credit Agreement, as amended. Neither the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders nor any of the final allocation existing Lenders shall have any obligation to provide additional Revolving Credit Commitments or to provide or identify any New Lender willing to provide additional Revolving Credit Commitments.
(c) Prior to the effectiveness of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increasein or addition to, in addition to any deliveries pursuant to subsection (a) aboveas the case may be, the Borrowers Revolving Credit Commitments, the Borrower shall deliver to the Administrative Agent each of the following Agent, in form and substance satisfactory to the Administrative Agent: (1) , in its sole discretion, a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying the Parent stating that the Borrower and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying thatParent are in pro forma compliance with all covenants contained in Section 7.1 of the Credit Agreement, before and after giving effect to such Incremental Term Loanthe increase in or addition to, (A) as the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12case may be, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Revolving Credit Commitments.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan."
Appears in 1 contract
Sources: Credit Agreement (Envirosource Inc)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)Default, upon notice from the Administrative Borrower Company, on behalf of the Borrowers, to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers Company, on behalf of the Borrowers, may from time to time, request a new term loan (an “Incremental Term Loan”) increase in the Aggregate Commitments by an aggregate amount (for all such Incremental Term Loans requests) not exceeding $50,000,000 to exceed $150,000,000; provided, however, that the Borrowers shall have delivered be applied pro rata as an increase to the Administrative Agent a Pro Forma Compliance Certificate demonstrating thatAggregate Revolving Commitments and as an increase to the Existing Term Loan Commitments, based upon giving effect on a Pro Forma Basis to such Incremental the relative proportions of (x) the Aggregate Revolving Commitments and (y) the sum of the unfunded portion of the Existing Term Loan, Loan Commitments and the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any outstanding Existing Term Loan (the “Increase Option”), with the portion allocated under clause (y) to be funded in full on the Increase Effective Date; provided that (i) shall rank pari passu in right the maximum amount of payment with the existing Term Loans and shall have the same benefits of Aggregate Commitments after giving effect to any additional guaranties or collateral and such increase may not exceed $750,000,000, (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder request for an increase shall be in a minimum amount of $10,000,000 (and in integral multiples 5,000,000 or any whole multiple of $10,000,000 1,000,000 in excess thereof), (iii) the Borrowers may make a maximum of three (3) such requests and (iv) the Maximum Senior Credit Facilities to Collateral Value Ratio shall not be greater than 50.00% after giving effect to any such increase, as evidenced by an updated pro forma Collateral Value Report delivered by the Company to the Administrative Agent. To achieve the full amount of a requested Incremental Term Loanincrease, the Administrative Agent, with the consent of the Borrowers (which consent shall not be unreasonably withheld) may solicit increased commitments from existing Lenders and/or and also invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 2.16 unless it specifically consents to such increase in writingwriting and no additional Eligible Assignee shall become a Lender unless its Commitment is at least $5,000,000. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) 2.16 shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Aggregate Commitments are increased in accordance with this SectionSection 2.16, the Administrative Agent and the Borrowers Company, on behalf of the Borrowers, shall determine the effective date (the “Incremental Term Loan Increase Effective Date”) and the final allocation of such Incremental Term Loanincrease. The Administrative Agent shall promptly notify the Administrative Borrower Company, on behalf of the Borrowers, and the Lenders of the final allocation of such Incremental Term Loan increase and the Incremental Term Loan Increase Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers each Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party Borrower (i) certifying and attaching the resolutions adopted by such Loan Party Borrower approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loanincrease, (A) the representations and warranties of the Borrowers and each other Loan Party contained in Article V and the or any other Loan Documents Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects and if the applicable representation and warranty is already subject to a materiality standard, shall be true and correct in all respects, on and as of the date of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, date and except that for purposes of this Section 2.122.16, the representations and warranties contained in subsections (a) and (b) of Section 5.01 5.05 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party such Borrower pursuant to which each such Loan Party Borrower ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan increase is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (54) payment of such additional Timberland Mortgages as may be necessary to comply with Section 6.14 hereof. The Borrowers shall prepay any applicable fee related Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to such Section 3.05) to the extent necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)in the Commitments under this Section 2.16.
(c) This Section shall supersede any provisions in Sections 2.10 or Section 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Sources: Credit Agreement (Longview Fibre Co)
Increase in Commitments. (a) Provided there exists So long as (x) no Default (and no Default exists or would result therefrom), upon notice from the Administrative Borrower exist after giving effect to the Administrative Agent (which shall promptly notify making of the Lenders), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not or Incremental Revolving Loans referred to exceed $150,000,000; provided, however, that below and the Borrowers shall have delivered use of proceeds therefrom and (y) after giving effect to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such making of the Incremental Term LoanLoans or Incremental Revolving Loans referred to below and the use of proceeds therefrom, the Loan Parties Borrower would be in compliance with the Financial Covenants on a pro forma basis on such date and for the most recent fiscal quarter for which financial covenants set forth statements have been delivered in accordance with Section 6.105.01 after giving effect on a pro forma basis to any related adjustment events, including any acquisitions or dispositions after the beginning of the relevant calculation period but prior to or simultaneous with the borrowing of such Incremental Term Loans or Incremental Revolving Loans, then upon written notice to the Administrative Agent, Borrower may from time to time (but only after the completion of the syndication of the Commitments and Loans (within the meaning of the Fee Letter) request additional term loans (the "INCREMENTAL TERM LOANS" and the related commitments, the "INCREMENTAL TERM LOAN COMMITMENTS") and/or additional revolving loans (the "INCREMENTAL REVOLVING LOANS" and the related commitments, the "INCREMENTAL REVOLVING LOAN COMMITMENTS") in an aggregate principal amount not to exceed $75,000,000; and provided further that any such increase shall be in an aggregate amount of $25,000,000 or any whole multiple of $1,000,000 in excess thereof; provided, further, that any existing Lender approached to provide all or a portion of the Incremental Term Loans and related commitments or Incremental Revolving Loans and related commitments may elect or decline, in its sole discretion, to provide such loans and commitments. To the extent the existing Lenders decline to agree to provide or do not affirmatively agree to provide within 10 Business Days of such request any portion of an Incremental Term Loan or an Incremental Revolving Loan and the related commitments, the Borrower may seek such Incremental Term Loan or Incremental Revolving Loan from any bank or financial institution that would qualify as an Eligible Assignee. The Incremental Term Loans (iA) shall rank pari passu in right of payment and right of security in respect of the Collateral with the existing Term Loans and (B) other than amortization, pricing and maturity date, shall have the same benefits terms as Term Loans existing immediately prior to the effectiveness of the amendment creating such Incremental Term Loans; provided that (x) if the interest rate spreads relating to such new Incremental Term Loans exceed the Applicable Rate at any additional guaranties pricing level for the Term Loans (including any upfront fees or collateral original issue discount payable to the Lenders providing such Incremental Term Loans) by more than 25 basis points, then the Applicable Rate for the Term Loans shall be adjusted to be equal to such interest rate spreads, (y) the Incremental Term Loans shall not have a final maturity date earlier than the Term Loan Maturity Date, and (ii) shall be treated substantially the same as (and in any event no more favorably thanz) the existing Incremental Term Loans shall not have a Weighted Average Life to Maturity that is shorter than the then-remaining Weighted Average Life to Maturity of the Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Any Term Loan. The aggregate amount of any Lender or additional bank or financial institution electing to make available an Incremental Term Loan hereunder Commitment (an "INCREMENTAL TERM LENDER") shall be in become a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase make its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”Commitment available, as the case may be, under this Agreement, pursuant to an amendment (an "INCREMENTAL FACILITY AMENDMENT") shallto this Agreement giving effect to the modifications permitted by this Section 2.21 and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Incremental Term Lender and the Administrative Agent, and to any other documentation, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form each case on terms and substance documentation satisfactory to the Administrative Agent and the Lead Arranger. The Incremental Revolving Loans (A) shall rank pari passu in right of payment and right of security in respect of the Collateral with the Revolving Loans and (B) other than pricing and maturity date, shall have the same terms as Revolving Loans existing immediately prior to the effectiveness of the amendment creating such Incremental Revolving Loans; provided that (x) if the interest rate spreads relating to such new Incremental Revolving Loans exceed the Applicable Rate at any pricing level for the Revolving Loans (including any upfront fees or original issue discount payable to the Lenders providing such Incremental Revolving Loans) by more than 25 basis points, then the Applicable Rate and unused commitment fees for the Revolving Loans shall be adjusted to be equal to such interest rate spreads, and (y) the Incremental Revolving Loans shall not have a final maturity date earlier than the applicable maturity date of the Revolving Loans and commitments thereunder may not be terminated prior to the date that all Revolving Credit Commitments hereunder are terminated. Any Revolving Lender or additional bank or financial institution electing to make available an Incremental Revolving Commitment (an "INCREMENTAL REVOLVING LENDER") shall become a Lender or make its counsel.
(b) If Incremental Revolving Commitment available, as the Commitments are increased case may be, under this Agreement, pursuant to an Incremental Facility Amendment to this Agreement giving effect to the modifications permitted by this Section 2.21 and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Incremental Revolving Lender and the Administrative Agent, and to any other documentation, in accordance with this Section, each case on terms and documentation satisfactory to the Administrative Agent and the Borrowers shall determine Lead Arranger. To the extent an Incremental Facility Amendment is entered into to increase the Revolving Credit Commitments with respect to an existing Class of Revolving Credit Commitments, then each of the Revolving Lenders of such Class having a Revolving Credit Commitment of such Class prior to such effective date of such Incremental Facility Amendment (the "PRE-INCREASE REVOLVING LENDERS OF SUCH CLASS" and the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent Facility Amendment, the "INCREASE EFFECTIVE DATE") shall promptly notify assign on the Administrative Borrower Increase Effective Date, and the such Incremental Revolving Lenders of the final allocation such Class shall purchase from each Pre-Increase Revolving Lender of such Incremental Term Loan Class, at the principal amount thereof, such interests in the Revolving Loans of such Class and, if such Class is the Multicurrency Revolving Credit Commitments, participation interests in LC Exposure and the Incremental Term Loan Swingline Loans outstanding on such Increase Effective Date and Schedule 2.01 hereto as shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, necessary in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms order that, after giving effect to all such increaseassignments and purchases, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor Revolving Loans of such Lender reflecting Class and participation interests in LC Exposure and Swingline Loans, if applicable, will be held by Pre-Increase Revolving Lenders of such Lender’s Commitment Class and Incremental Revolving Lenders of such Class ratably in accordance with their Revolving Commitments of such Class after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor increased Revolving Commitments of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Class. An Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan AmendmentFacility Amendment may, without the consent of any other LenderLenders, may 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, to effect the provisions of this Section 2.21.
(b) If any Incremental Term Loan Commitments or Incremental Revolving Loan Commitments are made in accordance with this Section 2.21, the Administrative Agent and Borrower shall determine the effective date (each, an "INCREMENTAL FACILITY EFFECTIVE DATE") and the final allocation of such increase. The Administrative Agent shall promptly notify Borrower and the Lenders of the final allocation of such increase and the BorrowersIncremental Facility Effective Date. As a condition precedent to such increase, Borrower shall deliver to implement to terms the Administrative Agent a certificate of Borrower dated as of the Incremental Term LoanFacility Effective Date signed by a Financial Officer of Borrower (i) certifying and attaching (A) the resolutions adopted by Borrower approving or consenting to such increase and (B) a certificate demonstrating pro forma compliance with the Financial Covenants as set forth in Section 2.21(a) and (ii) certifying that, including amortizationbefore and after giving effect to such increase, pricing(A) the representations and warranties set forth in Article III and the other Loan Documents shall be true and correct in all material respects on and as of the Incremental Facility Effective Date (unless expressly stated to relate to an earlier date, maturityin which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and such other technical amendments as may (B) no Default shall have occurred and be necessary or appropriate in continuing.
(c) Borrower shall use the reasonable opinion proceeds of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such any Incremental Term LoanLoans and Incremental Revolving Loans for general corporate purposes (including to finance Permitted Acquisitions).
(d) This Section 2.21 shall supersede any provisions in Section 9.08 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default At any time, at the option of the Borrower (and no Default would result therefrombut subject to the conditions set forth in clause (b) below), upon notice from the Commitments may be increased by an amount not in excess of $50,000,000 in the aggregate and the Borrower may make a maximum of two such requests (each such increase, an “Increase”). The Administrative Agent shall invite each Lender to increase its Commitments (it being understood that no Lender shall be obligated to increase its Commitments) in connection with a proposed Increase, and if sufficient Lenders do not agree to increase their Commitments in connection with such proposed Increase, then the Administrative Agent or the Borrower may invite any prospective lender who is reasonably satisfactory to the Administrative Agent and the Borrower to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof.
(b) Each of the following shall be conditions precedent to any Increase of the Commitments:
(i) The Administrative Agent or the Borrower have obtained the commitment of one or more of the Lenders (or other prospective lenders reasonably satisfactory to the Administrative Agent and the Borrower) to provide the applicable Increase and any prospective lenders, the Borrower and the Administrative Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), in form and substance reasonably satisfactory to the Administrative Agent (which shall promptly notify the Lendersnot to be unreasonably withheld or delayed), to which such prospective Lenders, the Borrowers may from Borrower, and the Administrative Agent are party,
(ii) Each of the conditions precedent set forth in Section 5.2 shall be satisfied;
(iii) Holdings is in compliance with all financial covenants set forth in Section 7.1 at the time of such Increase and on a pro forma basis after giving effect to time, request a new term loan such Increase and the application of the proceeds thereof;
(an “Incremental Term Loan”iv) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers The Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis certifying as to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right requirements of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and clauses (ii) shall be treated substantially the same as and (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (aiii) above, the Borrowers together with all reasonably detailed calculations evidencing compliance with clause (iii) above;
(v) The Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory have delivered to the Administrative Agent: , which shall in turn promptly furnish to the Lenders, a written request for such Increase at least ten (110) a certificate of each Loan Party dated as of Business Days prior to the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer requested funding date of such Loan Party (i) certifying and attaching Increase; provided that if such request indicates that such request is conditioned upon the resolutions adopted by occurrence of a specified event, such Loan Party approving or consenting to request may be revoked if such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer event does not occur prior to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).funding date;
(cvi) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The BorrowersAny Increase Joinder may, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without with the consent of any other Lenderthe Borrower, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriateappropriate to effectuate the provisions of this Section 2.25; provided, in however, that, the reasonable opinion terms of the increased Commitments (including the pricing and maturity date) shall be on the same terms as the Revolving Facility;
(vii) If requested by the Administrative Agent, the Lenders Borrower shall deliver to the Administrative Agent (i) the relevant board resolutions or written consents of each Loan Party approving such Increase and (ii) legal opinion(s) relating to the Borrowersmatters described above, which opinion(s) shall be in form and substance, and from counsel, reasonably satisfactory to implement the Administrative Agent; and
(viii) In connection with such Increase, the Borrower shall pay to the Administrative Agent all fees required to be paid pursuant to the terms of the Incremental Term LoanFee Letter.
(c) Unless otherwise specifically provided herein, including amortization(i) all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, pricingunless the context otherwise requires, maturityto include Revolving Loans made pursuant to this Section 2.25.
(d) Each of the Lenders having a Revolving Commitment prior to the Increase Effective Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolving Commitment on the Increase Effective Date (the “Post-Increase Revolver Lenders”), and such other technical amendments Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in the Revolving Loans on such Increase Effective Date as may shall be necessary or appropriate in order that, after giving effect to all such assignments and purchases and any Revolving Loan made on the reasonable opinion of Increase Effective Date, such Revolving Loans will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their pro rata share after giving effect to such increased Commitments.
(e) The Loans and Commitments established pursuant to this Section 2.25 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 the guarantees and security interests created by the Loan Documents. The Borrower shall take any actions reasonably required by the Administrative Agent, Agent to ensure and demonstrate that the Lenders Liens and security interests granted by the Borrowers in connection with Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Incremental Term LoanIncrease.
(f) This Section 2.25 shall override any provisions of Section 10.1 to the contrary.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Monotype Imaging Holdings Inc.)
Increase in Commitments. (a) Provided there exists no Default At any time during the period before the date that is at least 60 days prior to the Revolving Termination Date, at the option of the Borrower (and no Default would result therefrombut subject to the conditions set forth in clause (b) below), upon notice from the Revolving Commitments may be increased by an amount not in excess of $25,000,000 in the aggregate and the Borrower may make a maximum of two such requests (each such increase, an “Increase”). Administrative Agent shall invite each Lender to increase its Revolving Commitments (it being understood that no Lender shall be obligated to increase its Revolving Commitments) in connection with a proposed Increase, and if sufficient Lenders do not agree to increase their Revolving Commitments in connection with such proposed Increase, then Administrative Agent or the Borrower may invite any prospective lender who is reasonably satisfactory to Administrative Agent and the Borrower to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $1,000,000 and integral multiples of $1,000,000 in excess thereof.
(b) Each of the following shall be conditions precedent to any Increase of the Revolving Commitments:
(i) The Administrative Agent or the Borrower have obtained the commitment of one or more Lenders (or other prospective lenders reasonably satisfactory to Administrative Agent and the Borrower) to provide the applicable Increase and any prospective lenders, the Borrower and Administrative Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), in form and substance reasonably satisfactory to the Administrative Agent (which shall promptly notify the Lendersnot to be unreasonably withheld or delayed), to which such prospective lenders, the Borrowers may from time to timeBorrower, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to and the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon are party,
(ii) No Default or Event of Default shall exist at the time of such Increase or would exist after giving effect on a Pro Forma Basis to such Incremental Term Loan, Increase and the Loan Parties would be application of any proceeds thereof;
(iii) The Borrower is in compliance with the all financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with 7.1 at the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms time of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in Increase and on a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and pro forma basis after giving effect to such Incremental Term Loan, Increase; SF1 1952992
(Aiv) The Borrower shall have reached agreement with the representations and warranties contained in Article V and Lenders (or prospective lenders) agreeing to the other Loan Documents are true and correct as increased Revolving Commitments with respect to the interest margins applicable to Revolving Loans made pursuant to the increased Revolving Commitments (the date of such earlier date, and except that for purposes of this Section 2.12the increased Revolving Commitments, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan AmendmentIncrease Effective Date”). Any Increase Joinder may, and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without with the consent of any other Lenderthe Borrower, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriateappropriate to effectuate the provisions of this Section 2.24; provided, however, that, the interest margins applicable to Revolving Loans made pursuant to the increased Revolving Commitments (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (amortized over the life of such loans) payable to all Lenders providing such increase, but exclusive of any arrangement, structuring or other fees payable in the reasonable opinion connection therewith that are not shared with all Lenders providing such increase) as of the Administrative AgentIncrease Effective Date may not exceed the Applicable Margin for Revolving Loans hereunder by more than 0.50% unless the Applicable Margin for Revolving Loans is increased such that there is not greater than a 0.50% difference between the Applicable Margin for Revolving Loans immediately prior to the Increase Effective Date and the interest margins applicable to Revolving Loans made pursuant to the increased Revolving Commitments. For the avoidance of doubt, it is understood and agreed that if the interest margins that are to be applicable to the Revolving Loans made pursuant to the increased Revolving Commitments are higher by more than 0.50% than the interest margins applicable to Revolving Loans hereunder immediately prior to the applicable Increase Effective Date (the amount by which the interest margins are higher, the Lenders “Excess”), then the interest margins applicable to Revolving Loans immediately prior to the Increase Effective Date shall be increased by the amount of the Excess minus 0.50%, effective on the applicable Increase Effective Date.
(c) Unless otherwise specifically provided herein, (i) all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the Borrowerscontext otherwise requires, to implement include Revolving Loans made pursuant to terms the increased Revolving Commitments pursuant to this Section 2.24.
(d) Each of the Incremental Term Loan, including amortization, pricing, maturityLenders having a Revolving Commitment prior to the Increase Effective Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolving Commitment on the Increase Effective Date (the “Post-Increase Revolver Lenders”), and such other technical amendments Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in Letters of Credit on such Increase Effective Date as may shall be necessary or appropriate in the reasonable opinion order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of the Administrative Agent, the Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their pro rata share after giving effect to such increased Revolving Commitments.
(e) The Revolving Loans and Revolving Commitments established pursuant to this Section 2.24 shall constitute Revolving Loans and Revolving Commitments under, and shall SF1 1952992 be entitled to all the Borrowers in connection with benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents. Borrower shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Incremental Term Loannew Revolving Commitments.
(f) This Section 2.24 shall override any provisions of Section 10.1 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Demand Media Inc.)
Increase in Commitments. (a) Provided there exists no Default (The Borrower shall have the option at any time and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to timetime before the Revolving Credit Maturity Date (as the same may be extended pursuant to Section 2.12 below) or the Initial Term Loan Maturity Date, as applicable, to request a new (i) an increase in the Total Revolving Credit Commitment and/or (ii) an increase in the Initial Term Loan Commitment or additional term loan facilities (each, an “Incremental Term Loan Commitment” and the term loans thereunder, an “Incremental Term Loan”) in an aggregate amount for all ; any such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered increase pursuant to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan foregoing clause (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii), each individually, an “Incremental Facility” and, collectively, the “Incremental Facilities”) shall be treated substantially by giving written notice to the same as Agent (and in an “Increase Notice”), provided that any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall individual increase must be in a minimum amount of $10,000,000 (50,000,000.00 and in integral multiples increments of $10,000,000 5,000,000.00 in excess thereof). To achieve , and the full amount aggregate Commitments and Loans hereunder shall not exceed $3,200,000,000.00.
(b) The Agent, in consultation with the Borrower, shall manage all aspects of a requested the syndication of such Incremental Term LoanFacility, including decisions as to the Borrowers may solicit increased commitments from selection of the existing Lenders and/or invite additional Eligible Assignees other banks, financial institutions and other institutional lenders to become Lenders; providedbe approached with respect to such Incremental Facility and the allocations of any increase in the Revolving Credit Commitments and/or the Initial Term Loan Commitments or making of Term Loans among such existing Lenders and/or other banks, however, financial institutions and other institutional lenders (it being understood and agreed that no the Borrower shall not be required to approach any existing Lender with respect to any Incremental Facility). No Lender shall be obligated and/or required in any way whatsoever to accept increase its Revolving Credit Commitment or its Initial Term Loan Commitment, to provide a new Term Loan Commitment or to make an increase in its Commitment pursuant to this Section 2.12 unless additional Term Loan. Each such Lender approached by the Agent shall notify the Agent within such time period whether or not it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or provide less than its Commitment Percentage of such requested increase for the Revolving Credit Facility and/or Term Loan Facility, as the case may be. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment.
(c) In the case of any Class of Incremental Term Loans, except for (1) the Applicable Margin and any unused commitment fees, upfront fees, arranger fees, or other similar fees applicable to such Class of Incremental Term Loans, (2) the period available and procedure for borrowing such Class of Incremental Term Loans, amortization in respect thereof and any additional mandatory prepayment events applicable thereto, and (3) the Maturity Date for such Class of Incremental Term Loans, the terms and conditions therefor shall be identical to the terms and conditions applicable to the Revolving Credit Loans; provided that (A) no Class of Incremental Term Loans shall have a final maturity date that is earlier than the latest Term Loan Maturity Date then in effect, and (B) the weighted average life to maturity of any Class of Incremental Term Loans shall be no shorter than the weighted average life to maturity of any Class of Term Loans then outstanding.
(d) If a new Commitment pursuant Revolving Credit Lender becomes a party to this Section 2.12 Agreement, or if any existing Revolving Credit Lender is increasing its Revolving Credit Commitment, such Lender shall on the date it becomes a Revolving Credit Lender hereunder (or in the case of an “Incremental Term Loan existing Revolving Credit Lender, increases its Revolving Credit Commitment”) shall(and as a condition thereto) purchase from the other Revolving Credit Lenders its Revolving Credit Commitment Percentage (determined with respect to the Revolving Credit Lenders’ respective Revolving Credit Commitments and after giving effect to the increase of Revolving Credit Commitments) of any outstanding Revolving Credit Loans, by making available to the Agent for the account of such other Revolving Credit Lenders, in connection therewithsame day funds, deliver an amount equal to (A) the portion of the outstanding principal amount of such Revolving Credit Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Credit Lenders under Section 2.10(f) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Credit Loans. The Borrower shall pay to the Administrative Revolving Credit Lenders amounts payable, if any, to such Revolving Credit Lenders under Section 4.10 as a result of the prepayment of any such Revolving Credit Loans.
(e) Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such Incremental Facility, (y) the representations and warranties made or deemed made by the Borrower or any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on the effective date of any such Incremental Facility except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall have been true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances permitted hereunder, and (z) the Agent a new commitment agreement shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) if not previously delivered to the Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) unless the Agent and its counsel.
(b) If has notified the Commitments are increased in accordance with this SectionBorrower that it does not require delivery of such item, an opinion of counsel to the Borrower, the Administrative REIT and the other Guarantors, and addressed to the Agent and the Borrowers shall determine Lenders covering such matters as reasonably requested by the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, ; and (iiiii) certifying that, before and after giving effect in the case of a Lender that has notified the Agent in writing that it wants to such Incremental Term Loanreceive Notes, (A) new Revolving Credit Notes executed by the representations Borrower, payable to any such new Revolving Credit Lenders and warranties contained replacement Revolving Credit Notes executed by the Borrower, payable to any such existing Revolving Credit Lenders increasing their Revolving Credit Commitments, in Article V and the other Loan Documents are true and correct as amount of such earlier date, and except that for purposes Revolving Credit ▇▇▇▇▇▇’s Revolving Credit Commitment at the time of this Section 2.12, the representations and warranties contained effectiveness of the applicable increase in subsections (a) and (b) the aggregate amount of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and Revolving Credit Commitments and/or (B) no Default exists; a new Term Loan Note executed by the Borrower, payable to any such new Term Loan Lenders making Term Loans in the aggregate amount of such Term Loan Lender’s Term Loans, and replacement Term Loan Notes executed by the Borrower payable to any such existing Term Loan Lenders making additional Term Loans in the aggregate outstanding principal amount of such Term Loan Lender’s Term Loans at the time of the making of such additional Term Loans.
(f) In connection with any Incremental Facility, any Lender becoming a party hereto shall (1) execute such documents and agreements as the Agent may reasonably request and (2) a statement in the case of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and any Lender that is organized under the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession laws of a Notejurisdiction outside of the United States of America, then a revised Note in favor of provide to the Agent, its name, address, tax identification number and/or such Lender reflecting such Lender’s Commitment after giving effect other information as shall be necessary for the Agent to such increase; (4) if the Incremental Term Loan is being provided by a new Lendercomply with “know your customer” and anti-money laundering rules and regulations, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)the Patriot Act.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)At any time, the Borrowers may from time Company may, if it so elects, increase the amount of the U.S. Commitments (each such increase to time, request a new term loan (an “Incremental Term Loan”) be in an aggregate amount for of not less than $5,000,000), either by designating a financial institution or institutions (or other Person) not theretofore Lenders to become U.S. Lenders (such designation to be effective only with the prior written consent of the General Administrative Agent, which consent will not be unreasonably withheld or delayed, and only if each such financial institution (or other Person) accepts a U.S. Commitment of not less than $5,000,000) or by agreeing with an existing U.S. Lender or existing U.S. Lenders that such Lender’s or Lenders’ U.S. Commitments shall be increased. Upon execution and delivery by the Company and the other U.S. Borrower and such U.S. Lender or U.S. Lenders or other financial institution or institutions (or other Person) of an instrument (a “Commitment Acceptance”) substantially in the form of Exhibit H hereto, such existing U.S. Lender or U.S. Lenders shall have additional U.S. Commitments as therein set forth or such other financial institution or institutions (or other Person) shall become U.S. Lenders with U.S. Commitments as therein set forth and with all the rights and obligations of U.S. Lenders with such Incremental Term Loans not to exceed $150,000,000U.S. Commitments hereunder; provided, however, that provided that:
(i) the Borrowers Company and the other U.S. Borrower shall have delivered to the General Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on copy of the Commitment Acceptance (a Pro Forma Basis to such Incremental Term Loan, copy of which the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The General Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each U.S. Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and );
(ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12increase, the representations and warranties of the Borrowers contained in subsections (a) and (b) Article 4 of Section 5.01 this Agreement shall be deemed to refer to true;
(iii) at the most recent financial statements furnished pursuant to subsections (a) and (b)time of such increase, respectively, of Section 6.01, and (B) no Default exists; shall have occurred and be continuing or would result from such increase;
(2iv) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, the aggregate amount of the U.S. Commitments shall not exceed, by more than $150,000,000, the aggregate U.S. Commitments in effect on the Effective Date minus any reduction to the U.S. Commitments made pursuant to Section 2.10 or Section 2.12; and
(v) the General Administrative Agent shall have received such evidence (including an opinion of the Company’s counsel) as it is bound by all terms of this Agreement may reasonably request to confirm the Company’s and the other Loan Documents; (3) if U.S. Borrowers’ due authorization of the Incremental Term Loan is being provided transactions contemplated by an existing Lender, this Section and such Lender is then in possession the validity and enforceability of a Note, then a revised Note in favor the obligations of such Lender reflecting such Lender’s Commitment after giving effect to the Company and the other U.S. Borrowers resulting therefrom. On the date of any such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related each U.S. Borrower shall be deemed to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 have represented to the contrary.
(d) The Borrowers, Guarantors, General Administrative Agent and the U.S. Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, conditions set forth in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanclauses (i) through (v) above have been satisfied.
Appears in 1 contract
Sources: Credit Agreement (Ryerson Inc.)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)On a single occasion during each year subsequent to the Restatement Date, the Borrower may, upon at least thirty (30) days’ notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify provide a copy of such notice to the Lenders), propose to increase the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) amount of the Commitments in an aggregate minimum amount of $25,000,000 and an aggregate maximum amount for all such Incremental Term Loans increases pursuant to this Section 2.13 not to exceed $150,000,000; provided250,000,000 (the amount of any such increase, however, the “Increased Commitments”) provided that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have received a certificate signed by a Designated Officer dated as of the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms date of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) stating that 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 such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.122.13, the representations and warranties contained in Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b) of Section 5.01 6.01 and the representations and warranties contained in Section 5.06 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and subsection (b), respectively, ) of Section 6.01, 6.01 and (B) that no Default existshas occurred and is continuing.
(b) The Borrower may offer the Increased Commitments to: (i) any Lender party to this Agreement; provided, that any Lender offered an Increased Commitment shall have no obligation to accept such Increased Commitment; or (ii) any other Eligible Assignee acceptable to the Administrative Agent and which agrees to become a party to this Agreement (an “Additional Lender”); provided that the Commitment of each such Lender or Additional Lender equals or exceeds $10,000,000. The sum of (1) the aggregate amount of Commitment increases of any existing Lenders pursuant to this subsection (b) plus (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment aggregate amount of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Commitments of Additional Lenders shall not in the aggregate exceed the total amount of the Increased Commitments.
(c) This An increase in the aggregate amount of the Commitments pursuant to this Section 2.13 shall supersede any provisions become effective upon the receipt by the Administrative Agent of an agreement in Sections 2.10 or 10.01 form and substance satisfactory to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent signed by the Borrower, by each Additional Lender and by each other Lender whose Commitment is to be increased, setting forth the new Commitments of such Lenders shall enter into an amendment and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the other Loan Documents as necessary terms and provisions hereof, together with such evidence of appropriate corporate authorization on the part of the Borrower with respect to evidence the Increased Commitments and such Incremental Term Loan or opinions of counsel for the Borrower with respect to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation Increased Commitments as the Administrative Agent shall may reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanrequest.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)a)At any time, the Borrowers may from time Borrower may, if it so elects, increase the amount of the Total Revolving Credit Commitment (each such increase to time, request a new term loan (an “Incremental Term Loan”) be in an aggregate amount for of not less than $25,000,000), either by designating a financial institution or institutions (or other Person) not theretofore Lenders to become Lenders (such designation to be effective only if each such financial institution (or other Person) accepts a Commitment of not less than $5,000,000) or by agreeing with an existing Lender or Lenders that such Lender’s or Lenders’ Revolving Credit Commitments shall be increased. Upon execution and delivery by the Borrower and such Lender or Lenders or other financial institution or institutions (or other Person) of an instrument (a “Commitment Acceptance”) substantially in the form of Exhibit E hereto, with such written consents of each Issuing Lender, each Swing Line Lender and the Agent as would be required in the case of an assignment of a Revolving Credit Commitment to such Person, such existing Lender or Lenders shall have additional Revolving Credit Commitments as therein set forth or such other financial institution or institutions (or other Person) shall become Lenders with Revolving Credit Commitments as therein set forth and with all the rights and obligations of Lenders with such Incremental Term Loans not to exceed $150,000,000Revolving Credit Commitments hereunder; provided, however, that provided that:
(i) the Borrowers Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on copy of the Commitment Acceptance (a Pro Forma Basis copy of which the Agent shall promptly deliver to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and each Lender);
(ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12increase, the representations and warranties of the Loan Parties contained in subsections (a) and (b) Article 3 of Section 5.01 this Agreement shall be deemed true in all material respects;
(iii) at the time of such increase, no Default shall have occurred and be continuing or would result from such increase;
(iv) after giving effect to refer to such increase (assuming for such purpose that Revolving Credit Loans in the most recent financial statements furnished pursuant to subsections (a) and (bfull amount of the Total Revolving Credit Commitment were outstanding), respectively, of Section 6.01, and the Incurrence Test would be met;
(Bv) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, the Total Revolving Credit Commitment shall not exceed, by more than $50,000,000, the Total Revolving Credit Commitment in effect on the ARCA Effective Date minus any decreases in the Total Revolving Credit Commitment made pursuant to Section 2.11 or Section 2.12 following the ARCA Effective Date; and
(vi) the Agent shall have received such evidence (including an opinion of counsel for the Loan Parties) as it is bound may reasonably request to confirm the due authorization of the transactions contemplated by all terms of this Agreement Section and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, validity and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion enforceability of the Administrative Agent, the Lenders and the Borrowers, to implement to terms obligations of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term LoanLoan Parties resulting therefrom.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Tower International, Inc.)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from After the Administrative Borrower Closing Date but prior to the Administrative Agent (which shall promptly notify the Lenders)Maturity Date, the Borrowers may Borrower shall have the right to request from time to timetime additional Commitments (collectively, request a new term loan (an the “Incremental Term LoanAdditional Commitments”) in an aggregate amount for that, when combined with all such prior Incremental Term Loans Loan Facilities, does not to exceed $150,000,000; provided250,000,000, however, that each which request shall be made by the Borrowers shall have delivered Borrower giving written notice (the “Additional Commitment Notice”) to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loandetails with respect thereto as are reasonably requested by the Administrative Agent. Each request for Additional Commitments shall request Additional Commitments in an amount not less than $25,000,000 (or such lesser amount approved by the Administrative Agent). Upon receipt of such request, the Loan Parties would Administrative Agent shall notify the existing Lenders of the requested Additional Commitments and offer each such Lender an opportunity to participate at its sole discretion in the Additional Commitments. Any existing Lender that does not agree (in its sole discretion) to provide a portion of the proposed Additional Commitments within 10 days after receipt from the Administrative Agent of such notice shall be deemed to have declined participation in compliance any amount of such proposed Additional Commitments. Notwithstanding any existing Lender’s rejection of any portion of the proposed Additional Commitments, each existing Lender shall remain a Lender hereunder, subject to the terms and conditions hereof. In addition, the Borrower and the Administrative Agent may offer to additional proposed Lenders that qualify as Eligible Assignees (including any required consent of the Administrative Agent and/or the Swingline Lender, such consent not to be unreasonably withheld) the opportunity to accept all or a portion of the amount of the proposed Additional Commitments. The allocation of the Additional Commitments among the Lenders and Eligible 50 Choice Hotels – Credit Agreement (2018) Assignees who agree to accept any portion thereof shall be made by the Borrower, in consultation with the financial covenants set forth in Section 6.10; and provided further that any Term Loan Administrative Agent. Upon the effectiveness of the Additional Commitments, (i) each Eligible Assignee (that is not an existing Lender) which has been allocated any portion of the Additional Commitments shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and execute an accession agreement to this Agreement, (ii) the Commitments of the existing Lenders which have been allocated any portion of the Additional Commitments shall be treated substantially the same as increased by such amount, (and in any event no more favorably thaniii) the existing Term Pro Rata Percentages of the Lenders (including the Eligible Assignees as the new Lenders) shall be adjusted to reflect such allocations, (iv) if applicable, and subject to the payment of applicable amounts pursuant to Section 2.18 in connection therewith, the Borrower shall be deemed to have made such borrowings and repayments of the Revolving Loans. The applicable , and the Lenders shall approve the maturitymake such adjustments of outstanding Revolving Loans between and among them, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder as shall be in a minimum amount necessary to effect the reallocation of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term LoanCommitments such that, after giving effect thereto, the Borrowers may solicit increased commitments from existing Revolving Loans shall be held by the Lenders and/or invite additional (including the Eligible Assignees to become as the new Lenders; provided, however, that no existing Lender ) ratably in accordance with their Commitments and (v) other changes shall be obligated and/or required made to accept the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which Lenders (including the Eligible Assignees as the new Lenders) have agreed to increase their respective Commitments or make new Commitments in response to the Borrower’s request for an increase in its Commitment the aggregate Commitments pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing 2.24 and which other changes do not adversely affect the rights of those Lenders who do not elect to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shalltheir respective Commitments, in connection therewith, deliver to each case without the Administrative Agent a new commitment agreement in form and substance satisfactory to consent of the Administrative Agent and its counselLenders other than those Lenders increasing their Commitments.
(b) If Notwithstanding the foregoing, an increase in the aggregate amount of the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”pursuant to Section 2.24(a) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party effective only if (i) certifying no Default or Event of Default shall have occurred and attaching be continuing on the resolutions adopted by date such Loan Party approving or consenting increase is to such increase, and become effective; (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) each of the representations and warranties contained made by the Borrower in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents shall be true and acknowledges correct on and reaffirms that, after giving effect to such increase, it is bound by all terms as of this Agreement the date of the Additional Commitment Notice and the other Loan Documents; date such increase is to become effective with the same force and effect as if made on and as of such date (3) or, if the Incremental Term Loan any such representation or warrant is being provided by an existing Lender, and such Lender is then in possession expressly stated to have been made as of a Notespecific date, then a revised Note in favor as of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lenderspecific date); and (5iii) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent shall have received such documents and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation certificates as the Administrative Agent shall or its counsel may reasonably specify request relating to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment authorization of such Incremental Term Loanincrease.
Appears in 1 contract
Sources: Senior Unsecured Credit Agreement (Choice Hotels International Inc /De)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)On a single occasion during each year subsequent to the Restatement Date, the Borrower may, upon at least thirty (30) days’ notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify provide a copy of such notice to the Lenders), propose to increase the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) amount of the Commitments in an aggregate minimum amount of $25,000,000 and an aggregate maximum amount for all such Incremental Term Loans increases pursuant to this Section 2.13 not to exceed $150,000,000; provided325,000,000 (the amount of any such increase, however, the “Increased Commitments”) provided that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have received a certificate signed by a Designated Officer dated as of the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms date of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) stating that 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 such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.122.13, the representations and warranties contained in Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b) of Section 5.01 6.01 and the representations and warranties contained in Section 5.06 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and subsection (b), respectively, ) of Section 6.01, 6.01 and (B) that no Default existshas occurred and is continuing.
(b) The Borrower may offer the Increased Commitments to: (i) any Lender party to this Agreement; provided, that any Lender offered an Increased Commitment shall have no obligation to accept such Increased Commitment; or (ii) any other Eligible Assignee acceptable to the Administrative Agent and which agrees to become a party to this Agreement (an “Additional Lender”); provided that the Commitment of each such Lender or Additional Lender equals or exceeds $10,000,000. The sum of (1) the aggregate amount of Commitment increases of any existing Lenders pursuant to this subsection (b) plus (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment aggregate amount of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Commitments of Additional Lenders shall not in the aggregate exceed the total amount of the Increased Commitments.
(c) This An increase in the aggregate amount of the Commitments pursuant to this Section 2.13 shall supersede any provisions become effective upon the receipt by the Administrative Agent of an agreement in Sections 2.10 or 10.01 form and substance satisfactory to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent signed by the Borrower, by each Additional Lender and by each other Lender whose Commitment is to be increased, setting forth the new Commitments of such Lenders shall enter into an amendment and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the other Loan Documents as necessary terms and provisions hereof, together with such evidence of appropriate corporate authorization on the part of the Borrower with respect to evidence the Increased Commitments and such Incremental Term Loan or opinions of counsel for the Borrower with respect to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation Increased Commitments as the Administrative Agent shall may reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanrequest.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)At any time the Borrower may, upon notice from on the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to timeterms set forth below, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000that the Aggregate Commitments hereunder be increased; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) the Aggregate Commitments hereunder at no time shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and exceed $750,000,000, (ii) the Combined Commitments at no time shall be treated substantially the same as exceed $1,500,000,000, (and in any event no more favorably thaniii) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of each such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder request shall be in a minimum amount of at least $10,000,000 (and in integral multiples increments of $10,000,000 5,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept (iv) an increase in its the Aggregate Commitments hereunder may only be made at a time when no Default or Event of Default shall have occurred and be continuing, and (v) no Lender’s Commitment pursuant to shall be increased under this Section 2.12 unless it specifically consents to 2.16 without its consent. In the event of such a requested increase in writing. Any the Aggregate Commitment, any financial institution which the Borrower invites to become a Lender or Eligible Assignee agreeing to increase its Commitment or provide may set the amount of its Commitment at a new Commitment pursuant level agreed to this Section 2.12 by the Borrower; provided that if such financial institution is not an existing Lender, (an “Incremental Term Loan Commitment”x) shall, in connection therewith, deliver to the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such financial institution’s becoming a new commitment agreement Lender if such consent would be required under Section 10.06(b) for an assignment of Loans to such Person and (y) such financial institution shall not be any Person prohibited from taking an assignment of Loans pursuant to Section 10.06(b)(v). In the event that the Borrower and one or more of the Lenders (or other financial institutions) shall agree upon such an increase in form and substance satisfactory to the Administrative Agent and its counsel.
Aggregate Commitments (bi) If the Commitments are increased in accordance with this SectionBorrower, the Administrative Agent and each Lender or other financial institution increasing its Commitment or extending a new Commitment shall enter into an amendment to this Agreement setting forth the Borrowers amounts of the Commitments, as so increased, providing that the financial institutions extending new Commitments shall determine be Lenders for all purposes under this Agreement, and setting forth such additional provisions as the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify consider reasonably appropriate to effectuate the Administrative Borrower and the Lenders provisions of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, this Section 2.16 and (ii) certifying thatthe Borrower shall furnish, before if requested, a new Note to each financial institution that is extending a new Commitment or increasing its Commitment. No such amendment shall require the approval or consent of any Lender whose Commitment is not being increased. Upon the execution and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as delivery of such earlier dateamendment as provided above, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor upon satisfaction of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if other conditions as the Incremental Term Loan is being provided by a Administrative Agent may reasonably specify upon the request of the financial institutions that are extending new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase Commitments (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without administering the consent reallocation of any other Lenderoutstanding Loans ratably among the Lenders after giving effect to each such increase in the Aggregate Commitments, may effect such amendments to and the delivery of certificates, evidence of corporate authority and legal opinions on behalf of the Borrower), this Agreement and the other Loan Documents as may shall be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, deemed to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanamended accordingly.
Appears in 1 contract
Sources: Revolving Credit Agreement (TJX Companies Inc /De/)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the The Borrowers may from time to time, request a new time add one or more tranches of term loan loans or increase outstanding tranches of term loans (each an “Incremental Term LoanFacility”) and/or increase commitments under the Revolving Facility (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Company by an agreement in writing entered into by the Borrowers, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (and, for the avoidance of doubt, shall not require the consent of any other Lender) (each an “Incremental Facility Amendment”); provided that:
(a) the aggregate principal amount of all Incremental Facilities established under this Section 2.16 following the Second Amendment Effective Date shall not exceed the Incremental Amount;
(b) no Event of Default shall have occurred and be continuing at either the time of the request for such Incremental Facility or on the effective date of such Incremental Facility;
(c) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such L▇▇▇▇▇’s sole and absolute discretion;
(d) each Incremental Facility shall be in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate principal amount of any Incremental Term Loan hereunder shall be in a minimum amount of at least $10,000,000 (and in integral multiples of $10,000,000 1,000,000 in excess thereof). To achieve the full ; and each Incremental Facility Commitment shall be in a minimum principal amount of a requested at least $1,000,000, in the case of an Incremental Revolving Increase, and at least $1,000,000 in the case of an Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 Facility (an “Incremental Term Loan Commitment”) shallor, in connection therewitheach case, deliver to such lesser amounts as the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.may agree);
(be) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers each Person providing an Incremental Facility Commitment shall determine the effective date qualify as an Eligible Assignee;
(the “Incremental Term Loan Effective Date”f) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: :
(1i) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) date of such increase signed by a Responsible Officer of such Loan Party (iA) certifying and attaching the resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving or consenting to such increase, Incremental Facility and (iiB) in the case of the Company, certifying that, before and after giving effect to such Incremental Term Loanincrease, (A1) the representations and warranties of each Loan Party contained in Article V and the or any other Loan Documents Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B2) no Default exists; or Event of Default exists and (23) a statement of reaffirmation from each Loan Party pursuant such Incremental Facility or Incremental Facilities have been incurred in compliance with this Agreement;
(ii) such amendments to which each such Loan Party ratifies this Agreement and the other Loan Collateral Documents and acknowledges and reaffirms that, as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan DocumentsIncremental Facility; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).and
(ciii) This Section shall supersede any provisions in Sections 2.10 or 10.01 customary opinions of legal counsel to the contrary.
Loan Parties (d) The Borrowersor, Guarantorswhere consistent with local practice, counsel to the Administrative Agent), addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the Lenders shall enter into an amendment effective date of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents Facility;
(the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as g) the Administrative Agent shall have received documentation from each Person providing a commitment in respect of such requested Incremental Facility or Incremental Facilities (each such commitment, an “Incremental Facility Commitment”) evidencing its Incremental Facility Commitment and its obligations under this Agreement in form and substance reasonably specify acceptable to evidencethe Administrative Agent;
(h) in the case of an Incremental Term Facility, guarantee or secure the Administrative Agent shall have determined in its reasonable discretion whether such Incremental Term Loan. The Facility consists of a tranche A term loan (an “Incremental Tranche A Term Facility”) or a tranche B term loan (an “Incremental Tranche B Term Facility”);
(i) in the case of an Incremental Term Facility that is an Incremental Tranche A Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement Parties and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, to implement to terms of the providing such Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in Facility; provided that:
(A) the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Revolving Loans and the Term A Loan and (2) the final maturity date of any then outstanding Incremental Tranche A Term Loan.; and
(B) the Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term A Loan or any then outstanding Incremental Tranche A Term Loan (in each case, as determined by the Administrative Agent in accordance with customary financial practice);
Appears in 1 contract
Sources: Credit Agreement (Celestica Inc)
Increase in Commitments. The Borrower may, at its option, at any time or from time to time prior to the Termination Date, increase the Total Commitments by any amount provided that the Total Commitments shall not exceed $3,500,000,000 by requesting the existing Lenders or new lenders to commit to any such increase; provided that, (ai) Provided there exists no Lender shall be required to commit to any such increase; (ii) no such increase shall become effective unless at the time thereof and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing, (B) each of the representations and no Default would result therefromwarranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (except to the extent already qualified by materiality, in which case said representations and warranties are true and correct in all respects), upon notice and (C) Administrative Agent shall have received a certificate from the Administrative Borrower to the Administrative Agent effect of (which shall promptly notify the LendersA) and (B) of clause (ii), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (iiii) no new lender shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in become a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 2.21 unless it specifically consents such lender is an Eligible Assignee and Administrative Agent shall have given its prior written consent, which consent shall not be unreasonably withheld. Borrower shall be entitled to pay upfront or other fees to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment lenders who extend credit pursuant to this Section 2.12 2.21 as Borrower and such lenders may agree. Any increase in the Total Commitments shall be a Class A Commitment. Such increases in the Commitments shall become effective on the date (each such date, an “Incremental Term Loan CommitmentIncreased Facility Closing Date”) shall, specified in connection therewith, deliver an activation notice delivered to the Administrative Agent a new commitment agreement in form no less than ten (10) Business Days prior to effective date of such notice specifying the amount of the increase and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date thereof. Each new lender that provides any part of any such increase in the Commitments (the a “Incremental Term Loan Effective DateNew Lender”) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such New Lender shall become a Lender for all purposes and to the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower same extent as if originally a party hereto and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase bound by and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver entitled to the benefits of this Agreement. Unless otherwise agreed by Administrative Agent Agent, on each of Increased Facility Closing Date, Borrower shall borrow Revolving Loans under the following relevant increased Commitments from each Lender participating in form and substance satisfactory the relevant increase in an amount determined by reference to the Administrative Agent: (1) a certificate amount of each Type of Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation which would then have been outstanding from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by (x) each such Lender; Type had been borrowed or effected on such Increased Facility Closing Date and (5y) payment the aggregate amount of any each such Type requested to be so borrowed or effected had been proportionately increased, and, if applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanincreased Commitments, Borrower shall pay all amounts due under Section 2.17.
Appears in 1 contract
Sources: Credit Agreement (Lennar Corp /New/)
Increase in Commitments. (a) Provided there exists no Default On or prior to the date that is six months after the Third Amendment Effective Date, the Borrower may, by not less than three Business Days’ prior written notice (and no Default would result therefrom), upon notice from the Administrative Borrower an “Incremental Request”) to the Administrative Agent (which who shall promptly notify the Lenders) and to KBRA (if KBRA is providing a rating with respect to the Borrower), request increases in the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) Commitments denominated in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in U.S. Dollars by a minimum amount of $10,000,000 (50,000,000 and in integral multiples of an aggregate amount no greater than $10,000,000 in excess thereof100,000,000 (each such increase, an “Initial Incremental Commitment”). To achieve The parties hereto agree that the full amount of a Borrower exercised its rights under this Section 2.15(a)(i) on the Fourth Amendment Effective Date and no further increase in the Initial Incremental Commitments may be requested unless otherwise agreed to in writing by the Initial Lender in their sole discretion.
(b) An Incremental Term LoanCommitment may be provided by any Lender (each such Lender, an “Incremental Lender”); provided that each Incremental Lender that is not the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Initial Lender shall be obligated and/or required subject to accept an the consent of the Administrative Agent and the Initial Lender, which consent by the Initial Lender may be withheld in the sole discretion of the Initial Lender, but which consent by the Administrative Agent may not be unreasonably withheld, conditioned or delayed. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase in its Commitment pursuant to this Section 2.12 unless it specifically consents 2.15 and any election to do so shall be in the sole discretion of such increase Lender; provided that with respect to any Incremental Commitment set forth in writing. Any clause (a)(i) or (a)(ii), each Lender or Eligible Assignee agreeing shall be obligated to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor then‐existing Pro Rata Share of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.such
Appears in 1 contract
Sources: Loan and Servicing Agreement (Carlyle Credit Solutions, Inc.)
Increase in Commitments. (a) Provided there exists no Default The U.S. Borrower shall have the right (and no Default would result therefromin consultation with the Administrative Agent), upon notice from without the Administrative Borrower to the Administrative Agent (which shall promptly notify consent of any of the Lenders), the Borrowers may to cause from time to time, request a new term loan (time an “Incremental Term Loan”) increase in an aggregate amount for all such Incremental Term Loans not the Aggregate Commitments by adding to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties this Agreement one or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment Lenders pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counselcounsel or by allowing one or more Lenders to increase their respective Commitments, provided, however, (i) no Default shall exist, (ii) no such increase shall result in the Aggregate Commitments exceeding U.S. $3,750,000,000, (iii) no such increase shall be in an amount less than U.S. $50,000,000, and (iv) no Lender’s Commitment shall be increased without such Lender’s consent (which consent may be given or withheld in such Lender’s sole and absolute discretion) and any Lender which does not respond to any such request to increase its Commitment within the applicable time period provided therefor shall be deemed to have declined to increase its Commitment.
(b) If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers U.S. Borrower shall determine the effective date (the “Incremental Term Loan Increase Effective Date”) and the final allocation of such Incremental Term Loanincrease. The Administrative Agent shall promptly notify the Administrative U.S. Borrower and the Lenders of the final allocation of such Incremental Term Loan increase and the Incremental Term Loan Increase Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocationDate. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers U.S. Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of the U.S. Borrower, if the Aggregate U.S. Commitments are being increased, and/or the Canadian Borrower, if the Aggregate Canadian Commitments are being increased, and each Loan Party Guarantor dated as of the Incremental Term Loan Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions (or governing board minutes) adopted by such Loan Party approving or consenting to authorizing such increase, and (ii) in the case of each certificate from a Borrower, certifying that, before and after giving effect to such Incremental Term Loanincrease, (A) the representations and warranties contained in Article V 7 (other than Section 7.14) and the other Loan Documents made by it are true and correct in all material respects on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except provided that for purposes of this Section 2.12in each case, the such materiality qualifier shall not be applicable to any representations and warranties contained that already are qualified or modified by materiality in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01text thereof, and (B) no Default exists; . The U.S. Borrower shall prepay any U.S. Committed Loans outstanding on the Increase Effective Date (2) a statement of reaffirmation from each Loan Party and pay any additional amounts required pursuant to which each such Loan Party ratifies Section 5.05) to the extent necessary to keep the outstanding U.S. Committed Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the U.S. Commitments under this Agreement Section. The Canadian Borrower shall prepay any Canadian Committed Loans owing by it and outstanding on the other Loan Documents Increase Effective Date (and acknowledges and reaffirms that, after giving effect pay any additional amounts required pursuant to such increase, it is bound by all terms of Section 5.05) to the extent necessary to keep the outstanding Canadian Committed Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Canadian Commitments under this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Section.
(c) This Section shall supersede any provisions in Sections 2.10 Section 4.06 or 10.01 12.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)On or prior to 18the date that is 12 months after the ClosingFirst Amendment Effective Date, upon the Borrower may, by not less than 3 Business Days’ prior written notice from the Administrative Borrower to the Administrative NAI-15121569431515895953v1213 -51- Agent (which who shall promptly notify the Lenders), request increases in the Borrowers may from time to timeCommitments denominated in U.S. Dollars (each such increase, request a new term loan (an “Incremental Term LoanCommitment”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in by a minimum amount of $10,000,000 50,000,000 and (and in integral multiples 1) an aggregate amount of $10,000,000 100,000,000, or (2) such higher aggregate amount as mutually agreed between the Borrower and the LendersLender in excess thereoftheir sole discretion.
(b) An Incremental Commitment may be provided by any Lender (each such Lender, an “Incremental Lender”). To achieve ; provided that each Incremental Lender that is not the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Initial Lender shall be obligated and/or required subject to accept an the consent (in each case, not to be unreasonably withheld, delayed or conditioned) of the Administrative Agent and the Initial Lender, which consent by the Initial Lender may be withheld in the sole discretion of the Initial Lender, but which consent by the Administrative Agent may not be unreasonably withheld, conditioned or delayed. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase in its Commitment pursuant to this Section 2.12 unless it specifically consents 2.15 and any election to do so shall be in the sole discretion of such increase Lender; provided that with respect to any Incremental Commitment set forth in writing. Any clause (a)(1), each Lender or Eligible Assignee agreeing shall be obligated to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor then-existingthen‐existing Pro Rata Share of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.such
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Increase in Commitments. At any time prior to 30 days after the close of the primary syndication as reasonably determined and established by the Administrative Agent, in the event that sufficient commitments are received from banks and other financial institutions (other than Bank of Montreal and Bank of America National Trust and Savings Association (herein, the "Initial Lenders")), such that the Initial Lenders remaining Commitments, after giving effect to the syndication of the credit facilities provided for herein, are at their desired initial hold levels, and the aggregate Commitments hereunder and commitments under the Five-Year Credit Agreement exceed $250,000,000 (such excess being referred to herein as the "Overage"), then in that event the Administrative Agent shall notify the Company of the Overage, and the Company may request that the aggregate Commitments hereunder be increased by the lesser of $20,000,000 and 40% of the Overage by offering such increase to one or more banks or other financial institutions (each such bank or financial institution being hereinafter referred to as an "Additional Lender") selected by the Company and acceptable to the Lead Arrangers, Book Managers, and Syndication Agents and the Administrative Agent. Such increase in the Commitments shall also be subject to the satisfaction of the following conditions: (a) Provided there exists no Default each such increase shall be at least $2,000,000 or such greater amount which is an integral multiple $1,000,000; (and no Default would result therefrom), upon notice from the Administrative Borrower to b) the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept received an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to acknowledgement agreement providing for such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to it executed by the Company, the Administrative Agent, and the relevant Additional Lender; and (c) the Administrative Agent and its counsel.
(b) If shall have received a Note duly executed by the Commitments are increased Company in accordance with this Section, favor of the Administrative Agent and relevant Additional Lender. Upon the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation satisfaction of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders conditions, effective as of the final allocation date set forth above in such acknowledgement agreement, each such Additional Lender shall thereafter be a "Lender" party to this Agreement and shall be entitled to all rights, benefits and privileges afforded a Lender hereunder and subject to the obligations of such Incremental Term Loan a Lender hereunder to the extent of its Commitment and the Incremental Term Loan Effective Date and Schedule 2.01 hereto Exhibit A shall be deemed amended to reflect such reflecting the increase and final allocationin the aggregate Commitments caused by the inclusion of the Commitment of the Additional Lender. As a condition precedent to Concurrently with the effectiveness of such increase, in addition to any deliveries pursuant to subsection (a) above, each Additional Lender shall fund its percentage of the Borrowers shall deliver outstanding Loans to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and so that after giving effect to such Incremental Term Loanthereto each Lender, including the Additional Lender, holds a pro rata share (Ain accordance with its Commitment percentage) of the representations and warranties contained in Article V outstanding Loans and the other Loan Documents are true and correct Company shall pay to each Lender all amounts due under Section 3.6 hereof as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment result of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent prepayment of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion outstanding LIBOR Portions of the Administrative Agent, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term LoanLoans.
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Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)at its option, the Borrowers may at any time or from time to timetime prior to the Termination Date, request a new term loan increase the Total Commitments by up to $100,000,000 (an the “Incremental Term LoanCommitment Increase”) in to an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000880,000,000 by requesting the existing Lenders or new lenders to commit to any such increase; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating provided that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan : (i) no Lender shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of be required to commit to any additional guaranties or collateral and such increase; (ii) no such increase shall become effective unless at the time thereof and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing, (B) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be treated substantially true and correct in all material respects, provided, that, to the same as (extent any such representation and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturitywarranty is already qualified by materiality or reference to Material Adverse Effect, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder representation shall be true and correct in all respects, and (C) Administrative Agent shall have received a minimum amount certificate from Borrower to the effect of $10,000,000 (A) and in integral multiples (B) of $10,000,000 in excess thereofclause (ii). To achieve the full amount of ; and (iii) no new lender shall become a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 2.21 unless it specifically consents such lender is an Eligible Assignee and Administrative Agent shall have given its prior written consent, which consent shall not be unreasonably withheld. Borrower shall be entitled to pay upfront or other fees to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment lenders who extend credit pursuant to this Section 2.12 2.21 as Borrower and such lenders may agree. Any increase in the Total Commitments shall be a Class A Commitment. Such increases in the Commitments shall become effective on the date (each such date, an “Incremental Term Loan CommitmentIncreased Facility Closing Date”) shall, specified in connection therewith, deliver an activation notice delivered to the Administrative Agent a new commitment agreement in form no less than ten (10) Business Days prior to effective date of such notice specifying the amount of the increase and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date thereof. Each new lender that provides any part of any such increase in the Commitments (the a “Incremental Term Loan Effective DateNew Lender”) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such New Lender shall become a Lender for all purposes and to the final allocation same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. Unless otherwise agreed by Administrative Agent, on each Increased Facility Closing Date, Borrower shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of EurodollarTerm Benchmark Loans, of each Eurodollar Tranche) which would then have been outstanding from such Incremental Term LoanLender if (x) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased, and, if applicable in connection with such increased Commitments, Borrower shall pay all amounts due under Section 2.17. The Administrative Agent Eurodollar BaseTerm Benchmark Rate applicable to any EurodollarTerm Benchmark Loan borrowed pursuant to the preceding sentence shall promptly notify equal the Administrative rate then applicable to the EurodollarTerm Benchmark Loans of the other Lenders in the same Eurodollar Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each relevant Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
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Increase in Commitments. (ai) Provided there exists no Default (and no Default would result therefrom)WPZ shall have the option, upon notice without the consent of the Lenders, from time to time to cause one or more increases in the Administrative Borrower Aggregate Commitments by adding, subject to the prior approval of the Administrative Agent and the Issuing Banks (which shall promptly notify the Lenderssuch approval not to be unreasonably withheld), to this Agreement one or more financial institutions as Revolving Lenders (collectively, the Borrowers may from time to time, request a new term loan (an “Incremental Term LoanNew Lenders”) in an aggregate amount for all or by allowing one or more Revolving Lenders to increase their respective Commitments; provided however that: (A) prior to and after giving effect to the increase, no Default or Event of Default shall have occurred hereunder and be continuing, (B) no such Incremental Term Loans not increase shall cause the Aggregate Commitments to exceed $150,000,000; provided4,000,000,000, however(C) no Lender’s Commitment shall be increased without such Lender’s consent, that (D) such increase shall not result in the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits increase of any additional guaranties or collateral Borrower Sublimit and (iiE) such increase shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in evidenced by a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an commitment increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory reasonably acceptable to the Administrative Agent and its counselexecuted by WPZ, the Administrative Agent, the New Lenders, if any, and Lenders increasing their Commitments, if any, and which shall indicate the amount and allocation of such increase in the Aggregate Commitments and the effective date of such increase (the “Increase Effective Date”). Each financial institution that becomes a New Lender pursuant to this Section by the execution and delivery to the Administrative Agent of the applicable commitment increase agreement shall be a “Revolving Lender” and a “Lender” for all purposes under this Agreement on the applicable Increase Effective Date. The Borrowers shall borrow and prepay Loans on each Increase Effective Date (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Loans of each Revolving Lender ratable with such Lender’s revised Applicable Percentage after giving effect to any nonratable increase in the Aggregate Commitments under this Section.
(bii) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries each increase pursuant to subsection (aSection 2.01(c)(i) above, the Borrowers WPZ shall deliver to the Administrative Agent each of Agent, to the extent requested by the Administrative Agent, the following in form and substance reasonably satisfactory to the Administrative Agent: :
(1A) a certificate of each Loan Party dated as of the Incremental Term Loan Increase Effective Date (in sufficient copies for each Lender) Date, signed by a Responsible Officer of such Loan Party (i) the General Partner certifying and attaching that each of the resolutions adopted by such Loan Party approving or consenting conditions to such increase, increase set forth in this Section 2.01(c) shall have occurred and (ii) certifying been complied with and that, before and after giving effect to such Incremental Term Loanincrease, (A1) the representations and warranties (other than Added L/C Representations) contained in Article V this Agreement and the other Loan Documents are true and correct in all material respects on and as of the Increase Effective Date after giving effect to such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects as of such earlier date, and except (2) no Default or Event of Default exists and is continuing;
(B) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officer of the General Partner as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of such Responsible Officer thereof authorized to act as a Responsible Officer in connection with such increase agreement, and such documents and certifications as the Administrative Agent may reasonably require to evidence that for purposes WPZ is validly existing and in good standing in its jurisdiction of this Section 2.12organization; and
(C) a favorable customary opinion of counsel to WPZ, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed relating to refer such increase agreement, addressed to the most recent financial statements furnished pursuant Administrative Agent and each Lender if requested by the Administrative Agent or such Lenders.
(iii) Any Borrower shall have the option, by agreement with any Lender to subsections (aA) and (b)after consultation with the Administrative Agent, respectively, of Section 6.01, cause such Lender to become or cease to be an Issuing Bank under this Agreement and (B) no Default exists; (2) a statement increase or decrease the Letter of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Credit Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Lender as an Issuing Bank.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
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Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon The Borrower may by written notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time elect to time, request a new add one or more incremental term loan facilities hereunder (each, an “Incremental Term LoanFacility”) in an ; 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) the greater of (1) $250,000,000600,000,000 and (y) 100% of Consolidated EBITDA for the most recently completed Test Period calculated on a Pro Forma Basis, plus (y) an amount equal to the sum of all voluntary prepayments of Term Loans made pursuant to Section 2.08(a), plus (z) an additional unlimited amount so long as, after giving effect to the incurrence of such Incremental Facility, the Secured Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01 (or, if no Test Period has passed, as of the last four quarters ended), in each case, as if such Incremental Facility had been outstanding on the last day of such four-quarter period, shall not to exceed $150,000,0002.753.25:1.00, with the Borrower electing whether such Incremental Facility have been incurred (in whole or in part) under clauses (x), (y) and/or (z) in its sole discretion (collectively, the “Incremental Cap”); provided, howeverfurther, that (1) if any Incremental Facilities are to be established or incurred under both clauses (x) or (y) and (z) above in connection with a single transaction or series of related but substantially concurrent transactions, then the Borrowers maximum amount available of Incremental Facilities (or portion of Incremental Facilities) to be established or incurred under clause (z) shall first be determined by calculating the establishment or incurrence under such clause (z) without giving effect to any Incremental Facilities (or portion of any Incremental Facilities) established or incurred (or to be established or incurred) under clause (x) and/or clause (y), and after such maximum amount under clause (z) has been determined, the amount of Incremental Facilities (or portion of Incremental Facilities) established or incurred (or to be established or incurred) under clause (x) and/or clause (y) shall be determined, and (2) any Incremental Facilities originally designated as incurred pursuant to clauses (x) or (y) above may be reclassified at a later date, as the Borrower may elect in a written notice to the Administrative Agent, as incurred under clause (z) above if the Borrower would meet the applicable leverage test under clause (z) above calculated on a Pro Forma Basis as of the time of such election; provided, that upon delivery of any financial statements pursuant to Section 6.01 (and the corresponding Compliance Certificate pursuant to Section 6.01(c)) following the initial incurrence of such Incremental Facilities under clauses (x) or (y) of this definition, if such Incremental Facilities could, based on any such financial statements (and the corresponding Compliance Certificate), have been incurred under clause (z) of this definition, then such Incremental Facilities shall automatically be reclassified as incurred under clause (z) above. Each Class of Incremental Facility incurred under this Section 2.13 shall be in an aggregate principal amount that is not less than $10,000,000. Each such notice shall specify (x) the date (each, an “Increase Effective Date”) on which the Borrower proposes that the Incremental Facility shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably thany) the existing Term Loans. The applicable Lenders shall approve identity of each Eligible Assignee to whom the maturity, amortization, pricing, funding and other terms Borrower proposes any portion of such Incremental Term Loan. The aggregate amount Facility be allocated and the amounts of such allocations; provided that any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required approached to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender provide all or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as portion of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving Facility may elect or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatedecline, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowersits sole discretion, to implement to terms provide such portion of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term LoanFacility.
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Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)After the Effective Date, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered the right to increase the Administrative Agent a Pro Forma Compliance Certificate demonstrating thataggregate Revolving Commitments by obtaining additional Revolving Commitments (“Incremental Revolving Commitments”) and the right to increase the aggregate Term Loan Commitments by obtaining additional Term Loan Commitments (“Incremental Term Commitments”), upon giving effect on a Pro Forma Basis to in each case from either one or more of the Lenders or an additional Eligible Incremental Lender; provided that (A) any such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder Commitment shall be in a minimum amount of $10,000,000 25,000,000, (and in integral multiples of $10,000,000 in excess thereof). To achieve B) the full aggregate amount of all Incremental Commitments effected pursuant hereto shall not exceed $1,250,000,000; (C) any such new Term Lender shall have assumed all of the rights and obligations of a requested “Term Lender” hereunder; (D) any such new Revolving Lender shall have assumed all of the rights and obligations of a “Revolving Lender” hereunder; (E) any such Incremental Revolving Commitments shall, subject to Section 2.10(e), be on the same terms as the other Revolving Commitments and any such Incremental Term LoanCommitments shall, subject to Section 2.10(e), be on the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenderssame terms as the other Term Loans; provided, however, that no existing Lender shall be obligated and/or required to accept an increase and (F) all of the procedures and other conditions described in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its 2.10 shall have been satisfied.
(b) The Borrower Representative shall request an Incremental Commitment or provide by delivering a new Commitment pursuant to this Section 2.12 notice (an “Incremental Term Loan CommitmentCommitment Request”) shall, in connection therewith, deliver to the Administrative Agent, who shall promptly notify the Lenders of the substance thereof. The notice by the Administrative Agent to the Lenders describing each Incremental Commitment Request shall specify the time period (to be determined by the Borrower Representative in consultation with the Administrative Agent, but in no event be less than 15 Business Days from the date of delivery by the Borrower Representative of the applicable Incremental Commitment Request to the Administrative Agent) within which each Lender is required to inform the Borrower Representative and the Administrative Agent whether such Lender intends to participate in the applicable Incremental Commitment. Each Lender shall notify the Administrative Agent within the required time period whether or not it agrees to participate in the applicable Incremental Commitment and, if so, shall specify the amount of such Incremental Commitment it desires to be allocated to it. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. Each determination by a new commitment agreement Lender to participate in an Incremental Commitment shall be made by it in its sole and absolute discretion.
(c) The Administrative Agent shall notify the Borrower Representative and each Lender of the Lenders’ responses to each Incremental Commitment Request. The 68
(d) Any amendment hereto solely for Incremental Commitments shall be in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If shall only require the Commitments are increased in accordance with this Sectionwritten signatures of the Administrative Agent, the Administrative Agent and Borrower Representative (on behalf of the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”Borrowers) and the final allocation of such Lender(s) providing an Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocationCommitment. As a condition precedent to any such increase, in addition to any deliveries pursuant to subsection (a) aboveIncremental Commitment, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1i) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer an authorized officer of such Loan Party (ix) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, Incremental Commitment; and (iiy) in the case of the Borrowers, certifying that, before and immediately after giving effect to such Incremental Term Loanincrease, (A) the representations and warranties contained in Article V III and the other Loan Documents are shall be true and correct, except that such representations and warranties that relate solely to an earlier date shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and ; (B) no Default existsor Event of Default shall have occurred and be continuing or would result from any such Incremental Commitment; and (2C) at the time of and immediately after giving effect to each such Incremental Commitment, the Borrowers shall be in compliance with the covenant set forth in Section 6.13 (on a statement of reaffirmation from each Loan Party Pro Forma Basis for the Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or (b) ending immediately preceding such Incremental Commitment), which each compliance shall be evidenced by the due completion, execution and delivery of a Compliance Certificate and based on the assumption that such Loan Party ratifies this Agreement Incremental Commitment was fully drawn on the first day of such Test Period, and (ii) such opinions of counsel, evidence of flood insurance, ratification agreements, amendments to the other Loan Documents and acknowledges and reaffirms that, after giving effect (which amendments the Administrative Agent is authorized to such increase, it is bound by execute on behalf of all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing LenderLenders), and such Lender is then in possession of a Noteother documents, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increasecertificates and information as the Administrative Agent may reasonably request; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; that flood insurance due diligence and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section flood insurance compliance shall supersede any provisions in Sections 2.10 or 10.01 be reasonably satisfactory to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured whose compliance is impacted by the other Loan Documents relevant incremental facility.
(e) The terms and provisions of the “Loans made with respect to any Incremental Term Loan Amendment”)Commitments shall (i) rank pari passu in right of payment and of security with, and all Lenders shall have the same guarantees as the existing Loans; (ii) have a maturity date that is not providing earlier than the Maturity Date of the Term Loans (or if Incremental Revolving Commitments, the Revolving Loans); (iii) have a weighted average life to maturity that is no shorter than the weighted average life to maturity of the Term Loan hereby consent Loans (or if Incremental Revolving 69
(f) Any existing Lender that has a Note and participates in any Incremental Commitment shall, substantially contemporaneously with the delivery of its Note to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, replaced to the Borrowers, Guarantors and each receive a replacement Note that evidences the aggregate principal amount of its Loans outstanding hereunder. Any new Lender requesting a Note shall execute and deliver receive such a Note in an amount equal to Administrative Agent the aggregate principal amount of the Incremental Commitments for which its funds pursuant to the terms of this Section.
(g) Within a reasonable time after the effective date of any other documentation as Incremental Commitment, the Administrative Agent shall, and is hereby authorized and directed to, revise the Commitment Schedule to reflect any Incremental Commitment and shall reasonably specify distribute such revised Commitment Schedule to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent each of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms whereupon such revised Commitment Schedule shall replace the prior Commitment Schedule and become part of this Agreement. On the Business Day following the effectiveness of any such Incremental Revolving Commitment, all outstanding Revolving Loans shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Applicable Percentages of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term LoanRevolving Commitments.
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Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower Subject to the Administrative terms and conditions set forth herein, Borrower shall have the right, without the consent of the Lenders, the Agent or the L/C Issuer, to cause from time to time an increase in the Aggregate Commitments not to exceed the Borrowing Base in effect on, or determined as of, the date Borrower requests to be the effective date of such increase (each, a “Commitment Increase”) by adding to this Agreement one or more additional financial institutions or other lenders that are not already Lenders hereunder (which shall promptly notify be subject to the Lenderssame consents required under Section 11.06(b)(iii) as if such financial institution or other lender was a proposed assignee thereunder) (each a “CI Lender”), the Borrowers may from time or by allowing one or more existing Lenders to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000increase their respective Commitments; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and no Default shall have the same benefits of any additional guaranties or collateral and occurred which is continuing, (ii) no such Commitment Increase shall cause the Aggregate Commitments to exceed the Maximum Facility Amount, (iii) no Lender’s Commitment shall be treated substantially increased without such Lender’s prior written consent (which consent may be given or withheld in such Lender’s sole and absolute discretion) and (iv) if, on the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms effective date of such Incremental Term Loan. The aggregate amount of increase, any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term LoanLoans have been funded, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender then Borrower shall be obligated and/or required to accept an increase in its Commitment pursuant to this pay amounts due under Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, 3.05 in connection therewith, deliver to with the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counselreallocation of such outstanding Loans.
(b) If Borrower shall offer the Commitments are increased Commitment Increase as follows: first, to each existing Lender pro rata in accordance with this Sectionits Commitment; second, to the Administrative extent not satisfied by clause first, to existing Lenders that agreed to take their pro rata share of the Commitment Increase and third, to the extent not satisfied by clauses first and second, to CI Lenders. CREDIT AGREEMENT – Page 44
(c) Upon the Agent’s receipt of a fully-executed written notice in substantially the form of Exhibit J attached hereto or in such other form acceptable to the Agent (a “Notice of Commitment Increase”), such Notice of Commitment Increase and the Borrowers Commitment Increase described therein shall determine be effective on the proposed effective date set forth in such notice or on another date agreed to by the Agent, Borrower, and the relevant increasing Lenders and CI Lenders (such date referred to as the “Incremental Term Loan Commitment Increase Effective Date”).
(d) and On each Commitment Increase Effective Date, to the final allocation extent that there are Loans outstanding as of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders date (i) each CI Lender shall, by wire transfer of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increaseimmediately available funds, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent such CI Lender’s New Funds Amount, which amount, for each such CI Lender, shall constitute Loans made by such CI Lender to Borrower pursuant to this Agreement on such Commitment Increase Effective Date, (ii) the Agent shall, by wire transfer of immediately available funds, pay to each then Reducing Percentage Lender its Reduction Amount, which amount, for each such Reducing Percentage Lender, shall constitute a prepayment by Borrower pursuant to Section 2.04, ratably in accordance with the respective principal amounts thereof, of the following in form and substance satisfactory principal amounts of all then outstanding Loans of such Reducing Percentage Lender (but such prepayment shall not be subject to the Administrative Agentrequirements of Section 2.04), and (iii) Borrower shall be responsible to pay to each Lender any amounts due under Section 3.05 in connection with the reallocation of any outstanding Loans.
(e) For purposes of this Section 2.16, the following defined terms shall have the following meanings: (1) “New Funds Amount” means the amount equal to the product of a certificate Lender’s Commitment increase or a CI Lender’s Commitment (as applicable) represented as a percentage of each Loan Party dated the Aggregate Commitments after giving effect to the Commitment Increase, times the aggregate principal amount of the outstanding Loans immediately prior to giving effect to the Commitment Increase, if any, as of the Incremental Term Loan a Commitment Increase Effective Date (without regard to any increase in sufficient copies for the aggregate principal amount of Loans as a result of borrowings made after giving effect to the Commitment Increase on such Commitment Increase Effective Date); (2) “Reducing Percentage Lender” means each Lender) signed by then existing Lender immediately prior to giving effect to the Commitment Increase that does not increase its respective Commitment as a Responsible Officer result of such Loan Party (i) certifying the Commitment Increase and attaching whose relative percentage of the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and Aggregate Commitments shall be reduced after giving effect to such Incremental Term Loan, Commitment Increase; and (A3) “Reduction Amount” means the representations and warranties contained in Article V and the other Loan Documents are true and correct amount by which a Reducing Percentage Lender’s outstanding Loans decrease as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections a Commitment Increase Effective Date (a) and (b) of Section 5.01 shall be deemed to refer without regard to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, effect of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each any borrowings made on such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, Commitment Increase Effective Date after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative feeIncrease).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
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Increase in Commitments. (a) Provided there exists no Default (Event of Default, Event of Acceleration or Funding Blockage Event and no Default would result therefrom)subject to the approval of FINRA, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the applicable Lenders), the Borrowers Broker/Dealer may from time to time, time request the establishment of one or more new revolving commitments (a new term loan (an “Incremental Term LoanNew Credit Line Commitment”) hereunder, in an aggregate amount for all such Incremental Term Loans New Credit Line Commitments from and after the date hereof not in excess of $100,000,000; provided that any New Credit Line Commitment shall be in a minimum principal amount of $50,000,000 or a whole increment of $5,000,000 in excess thereof. The Broker/Dealer (in consultation with the Administrative Agent) shall specify in such notice (i) the principal amount of the requested New Credit Line Commitment and (ii) the date (the “Increase Effective Date”) on which the Broker/Dealer proposes that such New Credit Line Commitment shall be effective (which shall in no event be less than fifteen Business Days from the date of delivery of such notice to exceed $150,000,000; provided, however, that the Borrowers Lenders). Each Lender shall have delivered to notify the Administrative Agent at least five Business Days prior to the Increase Effective Date whether or not it agrees to provide a Pro Forma Compliance Certificate demonstrating thatportion of the requested New Credit Line Commitment (and, upon giving effect on a Pro Forma Basis to such Incremental Term Loanif so, the Loan Parties would principal amount it proposes to provide). Notwithstanding anything herein to the contrary, no Lender shall have any obligation to provide any portion of the requested New Credit Line Commitment and any election to do so shall be in compliance with the financial covenants set forth in sole discretion of such Lender. Any Lender not responding by 5:00 p.m. (New York City time) on the date five Business Days prior to the Increase Effective Date shall be deemed to have declined to provide any portion of the requested New Credit Line Commitment. The Administrative Agent shall notify the Broker/Dealer of the Lenders’ responses to the requested New Credit Line Commitment. To achieve the full amount of a requested New Credit Line Commitment and subject to the consent of the Administrative Agent and FINRA pursuant to Section 6.1032, the Broker/Dealer may also invite additional Eligible Assignees (which for the avoidance of doubt are not already Lenders) to become Lenders. The Administrative Agent and the Broker/Dealer shall determine the final allocation of the requested New Credit Line Commitment; and provided further that the Broker/Dealer shall not be required to allocate any Term Loan portion of such New Credit Line Commitment to existing Lenders. The Administrative Agent shall promptly notify the applicable Lenders of the final allocation of the requested New Credit Line Commitment.
(b) Each New Credit Line Commitment shall become effective as of the related Increase Effective Date; provided that (i) no Advances are outstanding on such Increase Effective Date, (ii) no Default shall exist on such Increase Effective Date before or after giving effect to such New Credit Line Commitment and to the making of any loans (in the case of new loans under the Agreement, the “New Advances”, and collectively, the “New Advances”) pursuant thereto; (iii) the conditions of Section 14 shall be met as of such Increase Effective Date and the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Broker/Dealer to such effect; (iv) the Administrative Agent shall have received such opinions, resolutions, certificates and other documents and instruments related to such New Credit Line Commitment as it shall reasonably request; (v) the maturity date of a New Credit Line Commitment shall not be earlier than the Scheduled Maturity Date; (vi) such New Credit Line Commitment shall be effected pursuant to a Joinder Agreement executed by the Broker/Dealer, the Administrative Agent and the lenders providing the New Advances (the “New Lenders”); (vii) the New Advances shall rank pari passu in right of payment with all other Advances and no New Advances shall be secured by or receive the benefit of any collateral, credit support or security that does not secure or support the existing Term Loans Advances; (viii) each New Credit Line Commitment relating to Advances shall be a Commitment and part of the Credit Line, each New Lender thereunder shall be, and shall have all the same benefits of any additional guaranties or collateral rights of, a Lender and (ii) the New Advances made by it shall be treated substantially Advances for all purposes of this Agreement and the same as (terms and in any event no more favorably than) provisions of such New Credit Line Commitment and the related New Advances that are Advances shall be identical to those of the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding Commitments and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 existing Advances; (ix) all fees and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory expenses then due to the Administrative Agent and its counsel.
the Lenders (bother than any Defaulting Lender) If shall have been paid; and (x) the Commitments are increased other terms and documentation in accordance respect of any New Credit Line Commitment, to the extent not consistent with this Section, Agreement as in effect prior to the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Increase Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent , shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall otherwise be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance reasonably satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 On each Increase Effective Date, subject to the contraryforegoing terms and conditions, each New Lender participating in the related New Credit Line Commitment shall become a Lender hereunder.
(d) The BorrowersEach Lender hereby agrees that any repayment pursuant to Paragraphs 3(d) or 5(c) of the Agreement after the Increase Effective Date of any Advances borrowed prior to the Increase Effective Date shall constitute new Advances and such Advances shall be made by all Lenders on a pro rata basis, Guarantorsgiving effect to any New Credit Line Commitments. Notwithstanding anything herein to the contrary, Administrative Agent and the Lenders shall enter into an amendment of but subject in all respects to approval by FINRA, this Agreement and the other Loan Documents as necessary Revolving Notes may be amended or amended and restated to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents changes as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the Lenders provisions of this Section 6, which amendment (which may be incorporated in the applicable Joinder Agreement) shall be executed by the Broker/Dealer, the Administrative Agent and the BorrowersNew Lenders (but shall not be required to be executed by any other Lenders and, notwithstanding anything to implement to terms the contrary set forth in Section 28, shall not require the consent of any Lender other than Lenders providing any New Credit Line Commitments established thereby). Such amendment may provide for the inclusion, as appropriate, of additional Lenders in any required vote or action of the Incremental Term Loan, including amortization, pricing, maturity, Required Lenders. This Section shall supersede any provisions in Section 4 or Section 28(a)-(i) and such other technical amendments as may be necessary or appropriate in (k) to the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loancontrary.
Appears in 1 contract
Sources: Revolving Note and Cash Subordination Agreement (Willis Group Holdings PLC)
Increase in Commitments. (a) Provided there exists no Default Upon notice to the Administrative Agent, at any time after the Effective Date, the Borrower may request that Additional Revolving Credit Commitments be provided by the existing Lenders (and no Default would result therefromin accordance with their Pro Rata Share), upon notice from the Administrative Borrower and if such Lenders are unwilling to provide such Additional Revolving Credit Commitments (it being understood that a Lender shall be deemed to be unwilling to provide such Additional Revolving Credit Commitments if it has not affirmatively responded to the Administrative Agent (which shall promptly notify the Lenderswithin 10 Business Days after ▇▇▇▇▇▇▇▇’s request), (x) the Borrowers Lead Arranger will use its reasonable efforts, subject to compensation to be agreed, to obtain one or more Persons that are Eligible Assignees to provide such Additional Revolving Credit Commitments and/or (y) the Borrower may from time identify one or more Persons that are Eligible Assignees to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all provide such Incremental Term Loans not to exceed $150,000,000Additional Revolving Credit Commitments; provided, however, provided that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with after giving effect to any such Additional Revolving Credit Commitments, the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, Additional Revolving Credit Commitments that no existing Lender shall be obligated and/or required to accept an increase in its Commitment have been added pursuant to this Section 2.12 unless it specifically consents 2.18 shall not exceed $160,000,000, (ii) each request for Additional Revolving Credit Commitments shall be in minimum increments of $20,000,000, (iii) the Borrower shall not make more than five such requests for Additional Revolving Credit Commitments and (iv) the terms of any Additional Revolving Credit Advances shall be the same as those for the existing Revolving Credit Advances, except that the Borrower shall be permitted to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver pay upfront fees to the Administrative Agent a new commitment agreement Additional Revolving Credit Lenders in form and substance satisfactory amounts to be agreed. Notwithstanding anything contained herein to the Administrative Agent and its counselcontrary, the Lender Parties shall not be obligated to commit to the Additional Revolving Credit Commitments.
(b) If Any Additional Revolving Credit Commitments to provide Additional Revolving Credit Advances under this Section 2.18 shall be added to this Agreement pursuant to an amendment (the Commitments are increased in accordance with this Section“Additional Revolving Credit Commitment Amendment”) among the Parent, the Borrower, the Administrative Agent and the Borrowers Additional Revolving Credit Lenders. As conditions precedent to the effectiveness of the Additional Revolving Credit Commitment Amendment, the Borrower shall determine deliver to the Administrative Agent (x) a certificate on behalf of the Borrower dated as of the effective date (the “Incremental Term Loan Additional Revolving Credit Commitments Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) Borrower certifying that, before and after giving effect to such Incremental Term Loanincrease, (Ai) the representations and warranties of the Loan Parties contained in Article V IV and the other Loan Documents are true and correct in all material respects on and as of the Additional Revolving Credit Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date (in which case such representations and warranties are true on and of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) without duplication of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01any materiality qualifiers applicable thereto, and (Bii) no Event of Default exists; exists immediately before or immediately after giving effect to such Additional Revolving Credit Commitment, the making of Additional Revolving Credit Advances in respect thereof and any Investment to be consummated in connection therewith, and (2y) a statement of reaffirmation from each if any Loan Party pursuant or any of its Subsidiaries owns any Margin Stock, an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrower, together with such other documentation as the Administrative Agent shall reasonably request, in order to enable the Agents and the Lenders to comply with any of the requirements under Regulations T, U or X of the Board. On each Additional Revolving Credit Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person which each such Loan Party ratifies is providing an Additional Revolving Credit Commitment (i) shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents and acknowledges and reaffirms that(ii) in the case of any Additional Revolving Credit Commitment, after giving effect shall make an Additional Revolving Credit Advance to the Company in a principal amount equal to such increaseAdditional Revolving Credit Commitment, it is bound by and such Additional Revolving Credit Advance shall be a “Revolving Credit Advance” for all terms purposes of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede Any Additional Revolving Credit Commitment Amendment and any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other related documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendmentmay, without the consent of any Lenders (other Lenderthan Additional Revolving Credit Lenders that are party to such Additional Revolving Credit Commitment Amendment), may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatereasonably necessary, in the reasonable opinion of the Administrative AgentAgent (in consultation with the Borrower), to effect the provisions of this Section 2.18. Any Additional Revolving Credit Advances made pursuant to this Section 2.18 shall be evidenced by one or more entries in the Register maintained by the Administrative Agent in accordance with the provisions set forth in Section 9.07(d).
(d) This Section 2.18 shall supersede any provisions in Section 9.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Lenders Loan Documents may be amended by the Administrative Agent and the BorrowersLoan Parties, if necessary, to implement provide for terms applicable to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loaneach Additional Revolving Credit Commitment.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)at its option, the Borrowers may at any time or from time to timetime after the Third Amendment Effective Date but prior to the Termination Date, request a new term loan increase the Total Commitments by up to $135,000,000100,000,000 (an the “Incremental Term LoanCommitment Increase”) in to an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000400,000,000625,000,000 by requesting the existing Lenders or new lenders to commit to any such Commitment Increase; provided that: (i) no Lender shall be required to commit to any such increase; (ii) such increase shall be in an amount equal to at least $10,000,000 (or such lesser amount as agreed by the Administrative Agent) or a whole multiple of $1,000,000 in excess thereof; (iii) no such increase shall become effective unless at the time thereof and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing, (B) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects; provided, howeverfurther, that, to the extent any such representation and warranty is already qualified by materiality or reference to Material Adverse Effect, such representation shall be true and correct in all respects and (C) the Administrative Agent shall have received a certificate from Borrower to the effect of sub-clauses (A) and (B) of clause (iii); and (iv) no new lender shall become a Lender pursuant to this Section 2.21 unless such lender is an Eligible Assignee and the Administrative Agent and each Issuing Lender shall have given its prior written consent; provided, further, that such prior written consent shall (1) not be unreasonably withheld, conditioned or delayed and (2) only be required to the Borrowers extent such consent would be required in connection with the assignment of Loans or Commitments to such new lender pursuant to Section 10.6. The Borrower shall have be entitled to pay upfront or other fees to such lenders who extend credit pursuant to this Section 2.21 as the Borrower and such lenders may agree. Such increases in the Commitments shall become effective on the date (each such date, an “Increased Facility Closing Date”) specified in an activation notice delivered to the Administrative Agent no less than ten (10) Business Days prior to the effective date of such notice specifying the amount of the increase and the effective date thereof (or such earlier date as may be agreed by the Administrative Agent in its sole discretion). Each new lender that provides any part of any such increase in the Commitments (a Pro Forma Compliance Certificate demonstrating that“New Lender”) shall execute a New Lender Supplement (each, upon giving effect a “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such New Lender shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. Unless otherwise agreed by Administrative Agent, on a Pro Forma Basis each Increased Facility Closing Date, Borrower shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term amount of each Type of Loan (iand, in the case of Term Benchmark Loans, of each Tranche) shall rank pari passu in right of payment with the existing Term Loans and shall which would then have the same benefits of any additional guaranties been outstanding from such Lender if (x) each such Type or collateral Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) shall be treated substantially the same as (and in any event no more favorably thany) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of each such Type or Tranche requested to be so borrowed or effected had been proportionately increased, and, if applicable in connection with such increased Commitments, Borrower shall pay all amounts due under Section 2.17. The Relevant Rate applicable to any Incremental Term Benchmark Loan hereunder borrowed pursuant to the preceding sentence shall equal the Relevant Rate then applicable to the Term Benchmark Loans of the other Lenders in the same Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative agreed upon between Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each relevant Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from Borrower shall also have the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may right from time to time, request a new term loan provided no Default or Unmatured Default has occurred and is then continuing, to increase the Aggregate Commitmentrequest (an i) increases in the Revolving Commitments, the Term A Loans or the Term Loans B Loans or (ii) the making of additional Term Loans (the “Incremental Additional Term LoanLoans”) in by up to an additional $500,000,000450,000,000 to a maximum aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided1,100,000,0001,250,000,000 (reduced to the extent Borrower has terminated or reduced the Revolving Commitments, however, that the Borrowers shall have delivered Term A Loans or the Term B Loans) by either adding new lenders as Lenders (subject to the Administrative Agent a Pro Forma Compliance Certificate demonstrating thatAgent’s prior written approval of the identity of such new lenders) or obtaining the agreement, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) which shall be treated substantially at such Lender’s or Lenders’ sole discretion, of one or more of the same as (and in any event no more favorably than) the existing then current Lenders to increase its or their Revolving Commitments, Term A Loans or Term B Loans or to make Additional Term Loans. The applicable Lenders shall approve Each such increase in the maturity, amortization, pricing, funding and other terms Commitments or the making of such Incremental Additional Term Loan. The Loans must be an aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (25,000,000 and in integral multiples of $10,000,000 5,000,000 in excess thereof). To achieve Each such increase may apply to the full amount of a requested Incremental Term LoanRevolving Commitments, the Borrowers Term A Loan Commitments, or the Term B Loan CommitmentsLoans, Term B Loans or the making of Additional Term Loans, or a combination thereof, as may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative determined by Borrower and the Lenders providing such increase. OnEffecting any increase of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) aboveRevolving Commitments, the Borrowers shall deliver Term A Loans, the Term B Loans or the making of Additional Term Loans under this Section is subject to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agentconditions precedent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (Bw) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement or Unmatured Default has occurred and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then continuing or shall be in possession of a Note, then a revised Note in favor existence on the effective date of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if increase of the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. AdditionallyRevolving Commitments, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentA Loans, the Lenders and Term B Loans or the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.making of
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower shall have the right, upon at least fifteen (15) Business Days’ prior written notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify Agent, to increase the Lenders)Aggregate Revolving Commitments, the Borrowers may aggregate Tranche A Term Loan Commitments, the aggregate Tranche B Term Loan Commitments and/or the aggregate Tranche C Term Loan Commitments by up to $200,000,000 in the aggregate for all such increases, in one or more increases, at any time and from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; providedsubject, however, in any such case, to satisfaction of the following conditions precedent:
(i) no Default has occurred and is continuing on the date on which such increase is to become effective;
(ii) the representations and warranties set forth in Article VI of this Agreement shall be true and correct in all material respects on and as of the date on which such increase is to become effective (except to the extent that the Borrowers such representations and warranties specifically refer to an earlier date, in which case they shall have delivered to be true and correct in all material respects as of such earlier date);
(iii) such increase shall be an integral multiple of $1,000,000 and shall in no event be less than $10,000,000;
(iv) such requested increase shall only be effective upon receipt by the Administrative Agent of (A) additional commitments in a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms corresponding amount of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments increase from either existing Lenders and/or invite additional one or more other institutions that qualify as an Eligible Assignees to become Lenders; provided, however, Assignee (it being understood and agreed that no existing Lender shall be obligated and/or required to accept provide an increase in its Commitment pursuant to additional commitment), (B) documentation from each institution providing an additional commitment evidencing their commitment and their obligations under this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement Agreement in form and substance satisfactory acceptable to the Administrative Agent and its counsel(C) in the case of an increase in the Tranche C Term Loan Commitments at such time when there are no Tranche C Term Loans outstanding, an agreement among the Borrower and the Lenders and other institutions providing the additional Tranche C Term Loan Commitments, in form and substance acceptable to the Administrative Agent, as to the principal amortization payments and Applicable Rates applicable to the Tranche C Term Loans, which agreement shall be deemed to amend Section 2.07(e) and the definition of Applicable Rate;
(v) the Administrative Agent shall have received all documents (including resolutions of the board of directors of the Borrower and opinions of counsel to the Borrower) it may reasonably request relating to the corporate or other necessary authority for such increase in the Aggregate Revolving Commitments, the aggregate Tranche A Term Loan Commitments, the aggregate Tranche B Term Loan Commitments and/or the aggregate Tranche C Term Loan Commitments, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent; and
(vi) if the reallocation, if any, of outstanding Loans among the Lenders in connection with such increase results in the prepayment of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto, the Borrower shall have paid to each affected Lender such amounts, if any, as may be required pursuant to Section 3.05.
(bi) If Upon the effectiveness of any increase in the Aggregate Revolving Commitments, the aggregate Tranche A Term Loan Commitments, the aggregate Tranche B Term Loan Commitments are and/or the aggregate Tranche C Term Loan Commitments, as applicable, pursuant to subsection (e) above, (A) the applicable Pro Rata Shares of the Lenders shall be automatically adjusted to give effect to such increase, provided that the amount of each Lender’s Commitments (other than a Lender whose Commitments shall have been increased in accordance connection with this Sectionsuch increase) shall remain unchanged and (B) the Borrower, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) Lenders will use all commercially reasonable efforts to assign and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders assume outstanding Loans of the final allocation of such Incremental Term Loan and affected category to conform the Incremental Term Loan Effective Date and Schedule 2.01 respective amounts thereof held by each Lender to the Pro Rata Shares as so adjusted, it being understood that the parties hereto shall be deemed amended use commercially reasonable efforts to reflect such increase and final allocation. As avoid prepayment or assignment of any affected Loan that is a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, Eurodollar Rate Loan on a day other than the Borrowers shall deliver to the Administrative Agent each last day of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, Interest Period applicable thereto and (ii) certifying in the case of an increase in the aggregate Tranche A Term Loan Commitments, the aggregate Tranche B Term Loan Commitments or the aggregate Tranche C Term Loan Commitments, as applicable, beginning with the date of the next principal amortization payment, occurring after the date of such increase, the amount of each principal amortization payment on the Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as applicable, shall be increased by the minimum amount that, before and when allocated ratably (based on outstandings) among all of the Lenders holding the Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as applicable, immediately after giving effect to such Incremental increase in the Tranche A Term LoanLoans, Tranche B Term Loans or Tranche C Term Loans, as applicable, would provide (Aassuming all other things to be equal) for each of the representations and warranties contained in Article V and Lenders holding the other Loan Documents are true and correct Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as of such earlier dateapplicable, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed immediately prior to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentTranche A Term Loans, the Lenders and the BorrowersTranche B Term Loans or Tranche C Term Loans, as applicable, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers receive in connection with such principal amortization payment an amount at least equal to the establishment amount that such Lender would have received had such increase in the aggregate Tranche A Term Loan Commitments, the aggregate Tranche B Term Loan Commitments or the aggregate Tranche C Term Loan Commitments, as applicable (and the corresponding adjustment to such principal amortization payment pursuant to this Section 2.01(f)) not taken place; provided that in the case of such Incremental an increase in the Tranche C Term LoanLoan Commitments occurring at a time when no Tranche C Term Loans are outstanding, the principal amortization payments of the Tranche C Term Loans shall be as provided in the agreement delivered pursuant to Section 2.01(e)(iv)(C).
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)After the Closing Date, the Borrower may, upon at least thirty (30) days’ notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify provide a copy of such notice to the Lenders), propose to increase the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) amount of the Commitments in an aggregate minimum amount of $25,000,000 and an aggregate maximum amount for all such Incremental Term Loans increases pursuant to this Section 2.13 not to exceed $150,000,000600,000,000 (the amount of any such increase, the “Increased Commitments”); provided, however, provided that the Borrowers shall have delivered to (i) the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have received a certificate signed by a Designated Officer dated as of the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms date of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 increase (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan CommitmentIncrease Effective Date”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
stating that (b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (Ax) 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 such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.122.13, the representations and warranties contained in Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b) of Section 5.01 6.01 and the representations and warranties contained in Section 5.06 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections subsection (ab) of Section 6.01 and (b), respectively, of Section 6.01, and (By) no Default exists; has occurred and is continuing and (2ii)(x) a statement upon the reasonable request of reaffirmation from each Loan Party pursuant any Lender or Additional Lender providing the Increased Commitments, made at least five days prior to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms thatIncrease Effective Date, after giving effect the Borrower shall have provided to such increaseLender or Additional Lender, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lenderas applicable, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new or Additional Lender, a Note in favor of such Lender if as applicable, shall be reasonably satisfied with, the documentation and other information so requested by such Lender; in connection with applicable “know your customer” and (5) payment of any applicable fee related to such increase (anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least two days prior to the Increase Effective Date and (y) at least two days prior to the Increase Effective Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then the Borrower shall have delivered, to each Lender that so requests a Beneficial Ownership Certification.
(b) The Borrower may offer the Increased Commitments to: (i) any applicable arrangementLender party to this Agreement; provided, upfront and/or administrative feethat any Lender offered an Increased Commitment shall have no obligation to accept such Increased Commitment; or (ii) any other Eligible Assignee acceptable to the Administrative Agent and which agrees to become a party to this Agreement (an “Additional Lender”); provided that the Commitment of each such Lender or Additional Lender equals or exceeds $10,000,000. The sum of (1) the aggregate amount of Commitment increases of any existing Lenders pursuant to this subsection (b) plus (2) the aggregate amount of any Commitments of Additional Lenders shall not in the aggregate exceed the total amount of the Increased Commitments.
(c) This An increase in the aggregate amount of the Commitments pursuant to this Section 2.13 shall supersede any provisions become effective upon the receipt by the Administrative Agent of an agreement in Sections 2.10 or 10.01 form and substance satisfactory to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent signed by the Borrower, by each Additional Lender and by each other Lender whose Commitment is to be increased, setting forth the new Commitments of such Lenders shall enter into an amendment and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the other Loan Documents as necessary terms and provisions hereof, together with such evidence of appropriate corporate authorization on the part of the Borrower with respect to evidence the Increased Commitments and such Incremental Term Loan or opinions of internal counsel for the Borrower (or, at the Borrower’s option, outside counsel) with respect to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation Increased Commitments as the Administrative Agent shall may reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanrequest.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)at its option, the Borrowers may at any time or from time to timetime prior to the Termination Date, request increase the Total Commitments (each such increase, a new term loan (an “Commitment Increase” and the additional Commitments pursuant to each such Commitment Increase, “Incremental Term LoanCommitments”) in to an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000800,000,0001,050,000,000 (with each Commitment Increase being in a minimum aggregate principal amount of $5,000,000 (the “Minimum Increase Amount”) or a whole multiple of $1,000,000 in excess of the Minimum Increase Amount) by requesting that existing Lenders or new lenders commit to any such increase; provided that: (i) no Lender shall be required to commit to any such increase; (ii) no such increase shall become effective unless at the time thereof and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing, (B) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects, provided, howeverthat, that to the Borrowers extent any such representation and warranty is already qualified by materiality or reference to Material Adverse Effect, such representation shall be true and correct in all respects, and (C) the Administrative Agent shall have received a certificate from the Borrower to the effect of (A) and (B) of clause (ii); and (iii) no new lender shall become a Lender pursuant to this Section 2.21 unless such lender is an Eligible Assignee and the Administrative Agent shall have given its prior written consent, which consent shall not be unreasonably withheld. The Borrower shall be entitled to pay upfront or other fees to such lenders who extend credit pursuant to this Section 2.21 as the Borrower and such lenders may agree. Each Commitment Increase shall become effective on the date (each such date, an “Increased Facility Closing Date”) specified in an activation notice delivered to the Administrative Agent no less than ten (10) Business Days prior to the effective date of such notice specifying the amount of the increase and the effective date thereof. Each new lender that provides any part of any such increase in the Commitments (a Pro Forma Compliance Certificate demonstrating that“New Lender”) shall execute a New Lender Supplement (each, upon giving effect on a Pro Forma Basis “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such New Lender shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement to such Incremental Term Loanextent. On any Increased Facility Closing Date, subject to the Loan Parties would be in compliance with satisfaction of the financial covenants set forth in Section 6.10; foregoing terms and provided further that any Term Loan conditions, (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 Lenders shall be deemed to refer assign to the most recent financial statements furnished pursuant to subsections each Person with Incremental Commitments (aeach, an “Incremental Lender”) and (b), respectively, each of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation the Incremental Lenders shall be deemed to purchase from each Loan Party pursuant to which each of the Lenders, at the principal amount thereof, such Loan Party ratifies this Agreement and interests in the other Loan Documents and acknowledges and reaffirms Revolving Loans outstanding on such Increased Facility Closing Date as shall be necessary in order that, after giving effect to all such increaseassignments and purchases, it is bound the Revolving Loans will be held by all terms of this Agreement and the other Loan Documents; Lenders (3including Incremental Lenders) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then ratably in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment accordance with their respective Commitments after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor addition of such Lender if so requested by such Lender; Incremental Commitments to the Commitments, (ii) each Incremental Commitment shall be deemed for all purposes a Commitment and each Revolving Loan made thereunder (an “Incremental Loan”) shall be deemed for all purposes a Revolving Loan and (5iii) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such each Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided Lender that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each is a New Lender shall execute and deliver to Administrative Agent any other documentation as become a Lender in accordance with the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loanimmediately preceding sentence. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement terms and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, to implement to terms provisions of the Incremental Term Loan, including amortization, pricing, maturity, Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.49
Appears in 1 contract
Sources: Credit Agreement (M/I Homes, Inc.)
Increase in Commitments. (a) Provided there exists no Default (At any time and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to timetime after the Closing Date, subject to the terms and conditions set forth herein, the Borrower Agent may, by notice to Agent, request a new term loan to effect one or more increases in the Commitments of any Facility (an “Incremental Term LoanCommitment”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000); provided, howeverthat, at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (i) no Event of Default shall have occurred and be continuing or shall result therefrom (and Agent shall have received a certificate to that effect from Borrower Agent), (ii) the Borrowers US Commitments shall comprise no less than thirty-five percent (35%) of the Maximum Facility Amount after giving effect to such Incremental Commitments, (iii) except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower Agent and the Additional Lenders, any Incremental Commitment shall be on the same terms and pursuant to the same documentation applicable to the existing Commitments under the applicable Facility, (iv) Borrower Agent shall have delivered or caused to the Administrative Agent a Pro Forma Compliance Certificate demonstrating thatbe delivered any officers’ certificates, upon giving effect on a Pro Forma Basis to such Incremental Term Loanboard resolutions, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties legal opinions or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a documents reasonably requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative by Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (iiv) certifying thatall fees due and payable in connection with such Incremental Commitment shall have been paid in immediately available funds. Notwithstanding anything to the contrary herein, before the aggregate principal amount of the Commitments shall not at the time of incurrence of any such Incremental Commitments (and after giving effect to such incurrence) exceed $65,000,000. Each Incremental Term LoanCommitment shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower Agent and Agent otherwise agree); provided, that, such amount may be less than $5,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Commitments set forth above.
(Ab) Each notice from the representations and warranties contained in Article V and Borrower Agent pursuant to this Section shall set forth the requested amount of the relevant Incremental Commitments. Any Incremental Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents are true executed by Borrower Agent, such Additional Lender and correct as of such earlier date, and except that for purposes Agent. Subject to the final sentence of this Section 2.12paragraph, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall Incremental Commitments may be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an any existing LenderLender (it being understood that no existing Lender shall, and such unless it agrees, be obligated to provide any Incremental Commitments) or by any Additional Lender is then in possession of or a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the combination thereof. An Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan AmendmentFacility Amendment may, without the consent of any other LenderLenders, may effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. Notwithstanding anything to the contrary provided for in this Section 2.1.9, each request for any Incremental Commitment under any Facility shall offer each of the existing Lenders and holding a Commitment in such Facility the Borrowersopportunity to participate in such Incremental Commitment in accordance with the respective Pro Rata shares of such Lenders under such Facility, to implement to terms with such fees in respect of the Incremental Term Loan, including amortization, pricing, maturity, Commitment for each Lender as Borrower Agent may agree. Unless any applicable Lender shall agree to participate in such Incremental Commitment in accordance with its Pro Rata share under such Facility and such other technical amendments as may be necessary or appropriate to the fees in respect of the Incremental Commitment included in the reasonable opinion offer within ten (10) Business Days of the Administrative Agentsuch offer, the Lenders it shall be deemed to have declined to provide an Incremental Commitment, except as Agent and Borrower Agent may otherwise agree.
(c) Any Revolving Loan made pursuant to an Incremental Commitment shall be a “Loan” for all purposes of this Agreement and the Borrowers other Loan Documents.
(d) Notwithstanding anything to the contrary, this Section 2.1.9 shall supersede any provisions in connection with Section 14.1 to the establishment of such Incremental Term Loancontrary.
Appears in 1 contract
Sources: Loan and Security Agreement (Computer Task Group Inc)
Increase in Commitments. (a) A. REQUEST FOR INCREASE. Provided there exists no Event of Default (has occurred and no Default would result therefrom)is continuing, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers Company may from time to time, time by written notice to Administrative Agent request a new term loan an increase in (i) the Revolving Loan Commitments by an “Incremental Term Loan”) in an aggregate amount (for all such Incremental Term Loans requests) not to exceed exceeding $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral 25,000,000 and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Tranche B Term Loan hereunder Commitments by an amount (for all such requests) not exceeding $50,000,000; provided that any such request for an increase shall be in a minimum amount of $10,000,000 (5,000,000.
B. INCREASE IN COMMITMENTS; ADDITIONAL LENDERS. Concurrently with any request by Company for an increase in Commitments pursuant to this subsection 2.10, Company shall notify Administrative Agent of each Lender that has agreed to increase its Revolving Loan Commitment or Tranche B Term Loan Commitment, as the case may be, and in integral multiples the amount of $10,000,000 in excess thereof)each such agreed increase. To achieve the full amount of a requested Incremental Term Loan, the Borrowers increase in Commitments Company may solicit increased commitments from existing Lenders and/or also invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment Lenders pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that Administrative Agent and, solely to the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionallyextent such Eligible Assignee is to have a Revolving Loan Commitment, the Borrowers, Guarantors Swingline Lender and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Issuing Lender, may effect shall have consented to any such amendments Eligible Assignee becoming a Lender. Company shall have no right to increase Commitments pursuant to this Agreement and subsection 2.10 except to the other Loan Documents as may be necessary extent Company obtains the agreement of one or appropriatemore Lenders and/or Eligible Assignees (and, in the reasonable opinion case of the Administrative Agentany such Eligible Assignee, the Lenders and the Borrowers, any requisite consents) to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and accept such other technical amendments as may be necessary or appropriate increase in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term LoanCommitments.
Appears in 1 contract
Sources: Credit Agreement (Urs Corp /New/)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)at its option, the Borrowers may at any time or from time to timetime prior to the Termination Date, request increase the Total Commitments (each such increase, a new term loan (an “Commitment Increase” and the additional Commitments pursuant to each such Commitment Increase, “Incremental Term LoanCommitments”) in by an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000100,000,000 (with each Commitment Increase being in a minimum aggregate principal amount of $5,000,000 (the “Minimum Increase Amount”) or a whole multiple of $1,000,000 in excess of the Minimum Increase Amount) by requesting that existing Lenders or new lenders commit to any such increase; provided that: (i) no Lender shall be required to commit to any such increase; (ii) no such increase shall become effective unless at the time thereof and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing, (B) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects, provided, howeverthat, that to the Borrowers extent any such representation and warranty is already qualified by materiality or reference to Material Adverse Effect, such representation shall be true and correct in all respects, and (C) the Administrative Agent shall have received a certificate from the Borrower to the effect of (A) and (B) of clause (ii); and (iii) no new lender shall become a Lender pursuant to this Section 2.21 unless such lender is an Eligible Assignee and the Administrative Agent shall have given its prior written consent, which consent shall not be unreasonably withheld. The Borrower shall be entitled to pay upfront or other fees to such lenders who extend credit pursuant to this Section 2.21 as the Borrower and such lenders may agree. Each Commitment Increase shall become effective on the date (each such date, an “Increased Facility Closing Date”) specified in an activation notice delivered to the Administrative Agent no less than ten (10) Business Days prior to the effective date of such notice specifying the amount of the increase and the effective date thereof. Each new lender that provides any part of any such increase in the Commitments (a Pro Forma Compliance Certificate demonstrating that“New Lender”) shall execute a New Lender Supplement (each, upon giving effect on a Pro Forma Basis “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such New Lender shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement to such Incremental Term Loanextent. On any Increased Facility Closing Date, subject to the Loan Parties would be in compliance with satisfaction of the financial covenants set forth in Section 6.10; foregoing terms and provided further that any Term Loan conditions, (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 Lenders shall be deemed to refer assign to the most recent financial statements furnished pursuant to subsections each Person with Incremental Commitments (aeach, an “Incremental Lender”) and (b), respectively, each of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation the Incremental Lenders shall be deemed to purchase from each Loan Party pursuant to which each of the Lenders, at the principal amount thereof, such Loan Party ratifies this Agreement and interests in the other Loan Documents and acknowledges and reaffirms Revolving Loans outstanding on such Increased Facility Closing Date as shall be necessary in order that, after giving effect to all such increaseassignments and purchases, it is bound the Revolving Loans will be held by all terms of this Agreement and the other Loan Documents; Lenders (3including Incremental Lenders) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then ratably in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment accordance with their respective Commitments after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor addition of such Lender if so requested by such Lender; Incremental Commitments to the Commitments, (ii) each Incremental Commitment shall be deemed for all purposes a Commitment and each Revolving Loan made thereunder (an “Incremental Loan”) shall be deemed for all purposes a Revolving Loan and (5iii) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such each Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided Lender that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each is a New Lender shall execute and deliver to Administrative Agent any other documentation as become a Lender in accordance with the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loanimmediately preceding sentence. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement terms and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, to implement to terms provisions of the Incremental Term Loan, including amortization, pricing, maturity, Loans and such other technical amendments as may Incremental Commitments shall be necessary or appropriate in substantially identical to the reasonable opinion terms and conditions of the Administrative Agent, the Lenders Revolving Loans and the Borrowers in connection with the establishment of such Incremental Term LoanCommitments.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)At any time the Borrower may, upon notice from on the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to timeterms set forth below, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000that the Aggregate Commitments hereunder be increased; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) the Aggregate Commitments hereunder at no time shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and exceed $750,000,000, (ii) the Combined Commitments at no time shall be treated substantially the same as exceed $1,500,000,000, (and in any event no more favorably thaniii) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of each such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder request shall be in a minimum amount of at least $10,000,000 (and in integral multiples increments of $10,000,000 5,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept (iv) an increase in its the Aggregate Commitments hereunder may only be made at a time when no Default or Event of Default shall have occurred and be continuing, and (v) no Lender’s Commitment pursuant to shall be increased under this Section 2.12 unless it specifically consents to 2.16 without its consent. In the event of such a requested increase in writing. Any the Aggregate Commitment, any financial institution which the Borrower invites to become a Lender or Eligible Assignee agreeing to increase its Commitment or provide may set the amount of its Commitment at a new Commitment pursuant level agreed to this Section 2.12 by the Borrower; provided that if such financial institution is not an existing Lender, (an “Incremental Term Loan Commitment”x) shall, in connection therewith, deliver to the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such financial institution’s becoming a new commitment agreement Lender if such consent would be required under Section 10.06(b) for an assignment of Revolving Loans to such Person and (y) such financial institution shall not be any Person prohibited from taking an assignment of Revolving Loans pursuant to Section 10.06(b)(v). In the event that the Borrower and one or more of the Lenders (or other financial institutions) shall agree upon such an increase in form and substance satisfactory to the Administrative Agent and its counsel.
Aggregate Commitments (bi) If the Commitments are increased in accordance with this SectionBorrower, the Administrative Agent and each Lender or other financial institution increasing its Commitment or extending a new Commitment shall enter into an amendment to this Agreement setting forth the Borrowers amounts of the Commitments, as so increased, providing that the financial institutions extending new Commitments shall determine be Lenders for all purposes under this Agreement, and setting forth such additional provisions as the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify consider reasonably appropriate to effectuate the Administrative Borrower and the Lenders provisions of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, this Section 2.16 and (ii) certifying thatthe Borrower shall furnish, before if requested, a new Note to each financial institution that is extending a new Commitment or increasing its Commitment. No such amendment shall require the approval or consent of any Lender whose Commitment is not being increased. Upon the execution and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as delivery of such earlier dateamendment as provided above, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor upon satisfaction of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if other conditions as the Incremental Term Loan is being provided by a Administrative Agent may reasonably specify upon the request of the financial institutions that are extending new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase Commitments (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without administering the consent reallocation of any other Lenderoutstanding Revolving Loans ratably among the Lenders after giving effect to each such increase in the Aggregate Commitments, may effect such amendments to and the delivery of certificates, evidence of corporate authority and legal opinions on behalf of the Borrower), this Agreement and the other Loan Documents as may shall be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, deemed to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanamended accordingly.
Appears in 1 contract
Sources: Revolving Credit Agreement (TJX Companies Inc /De/)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)At any time, the Borrowers may from time Borrower may, if it so elects, increase the amount of the Total Revolving Credit Commitment (each such increase to time, request a new term loan (an “Incremental Term Loan”) be in an aggregate amount for of not less than $25,000,000), either by designating a financial institution or institutions (or other Person) not theretofore Lenders to become Lenders (such designation to be effective only if each such financial institution (or other Person) accepts a Commitment of not less than $5,000,000) or by agreeing with an existing Lender or Lenders that such Lender’s or Lenders’ Revolving Credit Commitments shall be increased. Upon execution and delivery by the Borrower and such Lender or Lenders or other financial institution or institutions (or other Person) of an instrument (a “Commitment Acceptance”) substantially in the form of Exhibit E hereto, with such written consents of the Issuing Lender, the Swing Line Lender and the Agent as would be required in the case of an assignment of a Revolving Credit Commitment to such Person, such existing Lender or Lenders shall have additional Revolving Credit Commitments as therein set forth or such other financial institution or institutions (or other Person) shall become Lenders with Revolving Credit Commitments as therein set forth and with all the rights and obligations of Lenders with such Incremental Term Loans not to exceed $150,000,000Revolving Credit Commitments hereunder; provided, however, that provided that:
(i) the Borrowers Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on copy of the Commitment Acceptance (a Pro Forma Basis copy of which the Agent shall promptly deliver to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and each Lender);
(ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12increase, the representations and warranties of the Loan Parties contained in subsections (a) and (b) Article 3 of Section 5.01 this Agreement shall be deemed true in all material respects;
(iii) at the time of such increase, no Default shall have occurred and be continuing or would result from such increase;
(iv) after giving effect to refer to such increase (assuming for such purpose that Revolving Credit Loans in the most recent financial statements furnished pursuant to subsections (a) and (bfull amount of the Total Revolving Credit Commitment were outstanding), respectively, of Section 6.01, and the Incurrence Test would be met;
(Bv) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, the Total Revolving Credit Commitment shall not exceed, by more than $75,000,000, the Total Revolving Credit Commitment in effect on the Closing Date minus any decreases in the Total Revolving Credit Commitment made pursuant to Section 2.11 or Section 2.12; and
(vi) the Agent shall have received such evidence (including an opinion of counsel for the Loan Parties) as it is bound may reasonably request to confirm the due authorization of the transactions contemplated by all terms of this Agreement Section and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, validity and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion enforceability of the Administrative Agent, the Lenders and the Borrowers, to implement to terms obligations of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term LoanLoan Parties resulting therefrom.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Tower Automotive, LLC)
Increase in Commitments. (a) Provided there exists no Default The U.S. Borrower shall have the right (and no Default would result therefromin consultation with the Administrative Agent), upon notice from without the Administrative Borrower to the Administrative Agent (which shall promptly notify consent of any of the Lenders), the Borrowers may to cause from time to time, request a new term loan (time an “Incremental Term Loan”) increase in an aggregate amount for all such Incremental Term Loans not the Aggregate Commitments by adding to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties this Agreement one or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment Lenders pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counselcounsel or by allowing one or more Lenders to increase their respective Commitments, provided, however, (i) no Default shall exist, (ii) no such increase shall result in the Aggregate Commitments exceeding U.S. $3,750,000,000, (iii) no such increase shall be in an amount less than U.S. $50,000,000, and (iv) no Lender’s Commitment shall be increased without such Lender’s consent (which consent may be given or withheld in such Lender’s sole and absolute discretion) and any Lender which does not respond to any such request to increase its Commitment within the applicable time period provided therefor shall be deemed to have declined to increase its Commitment.
(b) If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers U.S. Borrower shall determine the effective date (the “Incremental Term Loan Increase Effective Date”) and the final allocation of such Incremental Term Loanincrease. The Administrative Agent shall promptly notify the Administrative U.S. Borrower and the Lenders of the final allocation of such Incremental Term Loan increase and the Incremental Term Loan Increase Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocationDate. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers U.S. Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of the U.S. Borrower, if the Aggregate U.S. Commitments are being increased, and/or the Canadian Borrower, if the Aggregate Canadian Commitments are being increased, and each Loan Party Guarantor dated as of the Incremental Term Loan Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions (or governing board minutes) adopted by such Loan Party approving or consenting to authorizing such increase, and (ii) in the case of each certificate from athe Borrower, certifying that, before and after giving effect to such Incremental Term Loanincrease, (A) the representations and warranties contained in Article V 7 (other than Section 7.14) and the other Loan Documents made by it are true and correct in all material respects on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except provided that for purposes of this Section 2.12in each case, the such materiality qualifier shall not be applicable to any representations and warranties contained that already are qualified or modified by materiality in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01text thereof, and (B) no Default exists; . The U.S. Borrower shall prepay any U.S. Committed Loans outstanding on the Increase Effective Date (2) a statement of reaffirmation from each Loan Party and pay any additional amounts required pursuant to which each such Loan Party ratifies Section 5.05) to the extent necessary to keep the outstanding U.S. Committed Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the U.S. Commitments under this Agreement Section. The Canadian Borrower shall prepay any Canadian Committed Loans owing by it and outstanding on the other Loan Documents Increase Effective Date (and acknowledges and reaffirms that, after giving effect pay any additional amounts required pursuant to such increase, it is bound by all terms of Section 5.05) to the extent necessary to keep the outstanding Canadian Committed Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Canadian Commitments under this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Section.
(c) This Section shall supersede any provisions in Sections 2.10 Section 4.06 or 10.01 12.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)at its option, the Borrowers may at any time or from time to timetime prior to the Termination Date, request increase the Total Commitments (each such increase, a new term loan (an “Commitment Increase” and the additional Commitments pursuant to each such Commitment Increase, “Incremental Term LoanCommitments”) in to an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000400,000,000500,000,000 (with each Commitment Increase being in a minimum aggregate principal amount of $5,000,000 (the “Minimum Increase Amount”) or a whole multiple of $1,000,000 in excess of the Minimum Increase Amount) by requesting that existing Lenders or new lenders commit to any such increase; provided that: (i) no Lender shall be required to commit to any such increase; (ii) no such increase shall become effective unless at the time thereof and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing, (B) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects, provided, howeverthat, that to the Borrowers extent any such representation and warranty is already qualified by materiality or reference to Material Adverse Effect, such representation shall be true and correct in all respects, and (C) the Administrative Agent shall have received a certificate from the Borrower to the effect of (A) and (B) of clause (ii); and (iii) no new lender shall become a Lender pursuant to this Section 2.21 unless such lender is an Eligible Assignee and the Administrative Agent shall have given its prior written consent, which consent shall not be unreasonably withheld. The Borrower shall be entitled to pay upfront or other fees to such lenders who extend credit pursuant to this Section 2.21 as the Borrower and such lenders may agree. Each Commitment Increase shall become effective on the date (each such date, an “Increased Facility Closing Date”) specified in an activation notice delivered to the Administrative Agent no less than ten (10) Business Days prior to the effective date of such notice specifying the amount of the increase and the effective date thereof. Each new lender that provides any part of any such increase in the Commitments (a Pro Forma Compliance Certificate demonstrating that“New Lender”) shall execute a New Lender Supplement (each, upon giving effect on a Pro Forma Basis “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such New Lender shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement to such Incremental Term Loanextent. On any Increased Facility Closing Date, subject to the Loan Parties would be in compliance with satisfaction of the financial covenants set forth in Section 6.10; foregoing terms and provided further that any Term Loan conditions, (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 Lenders shall be deemed to refer assign to the most recent financial statements furnished pursuant to subsections each Person with Incremental Commitments (aeach, an “Incremental Lender”) and (b), respectively, each of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation the Incremental Lenders shall be deemed to purchase from each Loan Party pursuant to which each of the Lenders, at the principal amount thereof, such Loan Party ratifies this Agreement and interests in the other Loan Documents and acknowledges and reaffirms Revolving Loans outstanding on such Increased Facility Closing Date as shall be necessary in order that, after giving effect to all such increaseassignments and purchases, it is bound the Revolving Loans will be held by all terms of this Agreement and the other Loan Documents; Lenders (3including Incremental Lenders) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then ratably in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment accordance with their respective Commitments after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment addition of such Incremental Term Commitments to the Commitments, (ii) each Incremental Commitment shall be deemed for all purposes a Commitment and each Revolving Loan made thereunder (an “Incremental Loan.”) shall be deemed for all purposes a Revolving Loan and
Appears in 1 contract
Sources: Credit Agreement (M I Homes Inc)
Increase in Commitments. Subject to the terms and conditions set forth herein, the Borrowers may at any time during the period from the Closing Date until May 16, 2005, upon notice to the Administrative Agent, increase the Revolving Commitments and/or the Term Loan by an amount up to an additional ONE HUNDRED MILLION DOLLARS ($100,000,000) in the aggregate; provided that:
(a) Provided there exists any such increase shall be in a minimum aggregate principal amount of $5 million and integral multiples of $1 million in excess thereof (or the remaining amount, if less),
(b) on the effective date of such increase, (i) with respect to any increase in the Revolving Commitments, if any Revolving Loans are outstanding at the time of any such increase, the Borrowers shall make such payments and adjustments on the Revolving Loans and (ii) with respect to any increase in the Term Loan, if any portion of the Term Loan is outstanding at the time of any such increase, the Borrowers shall make such payments and adjustments on the Term Loan (in each case including payment of any amounts owing under Section 3.11) as necessary to give effect to the revised commitment percentages and commitment amounts,
(c) the conditions to the making of a Loan set forth in Section 5.2 shall be satisfied, and
(d) the Borrowers shall obtain commitments for the amount of the increase from existing Lenders (provided that no Default (and no Default existing Lender shall have any obligation to increase its commitments hereunder) or other commercial banks or financial institutions that would result therefrom), upon notice from the Administrative Borrower constitute an Eligible Assignee that are reasonably acceptable to the Administrative Agent (which shall promptly notify and with respect to any increase in the LendersRevolving Commitments, the Issuing Lender and the Swingline Lender), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) provided that such other commercial banks and financial institutions join in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered this Credit Agreement as Lenders by joinder agreement or other arrangement reasonably acceptable to the Administrative Agent a Pro Forma Compliance Certificate demonstrating thatAgent. In connection with any such increase in the Commitments, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (iiSchedule 2.1(a) shall be treated substantially revised to reflect the same as (modified commitments and in any event no more favorably than) commitment percentages of the existing Term Loans. The applicable Lenders shall approve Lenders, and the maturityBorrowers will provide supporting corporate resolutions, amortizationlegal opinions, pricing, funding promissory notes and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall items as may be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a reasonably requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, by the Administrative Agent and the Borrowers shall determine new Lenders (including the effective date (the “Incremental Term Loan Effective Date”existing Lenders that are increasing their commitments) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loantherewith.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the The Borrowers may from time to timetime add one or more tranches of term loans or increase outstanding tranches of term loans (each an “Incremental Term Facility”) and/or increase commitments under the Revolving Facility (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Company by an agreement in writing entered into by the Borrowers, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (and, for the avoidance of doubt, shall not require the consent of any other Lender) (each an “Incremental Facility Amendment”); provided that:
(a) the aggregate principal amount of all Incremental Facilities established under this Section 2.16 following the Second Amendment Effective Date shall not exceed the Incremental Amount;
(b) no Event of Default shall have occurred and be continuing at either the time of the request for such Incremental Facility or on the effective date of such Incremental Facility;
(c) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such L▇▇▇▇▇’s sole and absolute discretion;
(d) each Incremental Facility shall be in an aggregate principal amount of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof; and each Incremental Facility Commitment shall be in a new minimum principal amount of at least $1,000,000, in the case of an Incremental Revolving Increase, and at least $1,000,000 in the case of an Incremental Term Facility (or, in each case, such lesser amounts as the Administrative Agent may agree);
(e) each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(f) the Borrowers shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such increase signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Company, certifying that, before and after giving effect to such increase, (1) the representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) as of such earlier date, (2) no Default or Event of Default exists and (3) such Incremental Facility or Incremental Facilities have been incurred in compliance with this Agreement;
(ii) prior to the Collateral Release Date, such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility; and
(iii) customary opinions of legal counsel to the Loan Parties (or, where consistent with local practice, counsel to the Administrative Agent), addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility;
(g) the Administrative Agent shall have received documentation from each Person providing a commitment in respect of such requested Incremental Facility or Incremental Facilities (each such commitment, an “Incremental Facility Commitment”) evidencing its Incremental Facility Commitment and its obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(h) in the case of an Incremental Term Facility, the Administrative Agent shall have determined in its reasonable discretion whether such Incremental Term Facility consists of a tranche A term loan (an “Incremental Tranche A Term LoanFacility”) or a tranche B term loan (an “Incremental Tranche B Term Facility”);
(i) in the case of an aggregate amount Incremental Term Facility that is an Incremental Tranche A Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for all such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Revolving Loans and the Term A Loan and (2) the final maturity date of any then outstanding Incremental Tranche A Term Loan; and
(B) the Weighted Average Life of such Incremental Term Facility shall not to exceed $150,000,000be shorter than the then remaining Weighted Average Life of the Term A Loan or any then outstanding Incremental Tranche A Term Loan (in each case, as determined by the Administrative Agent in accordance with customary financial practice); provided, howeverfurther, that clauses (i)(A) and (i)(B) above shall not apply to (1) Inside Maturity Indebtedness or (2) bridge Indebtedness, so long as, in the case of any such bridge Indebtedness, (i)(x) at the initial maturity of such bridge Indebtedness, such bridge Indebtedness shall automatically convert to (or would be required to be exchanged for) Indebtedness that complies with clauses (i)(A) and (i)(B) above, or (y) such bridge Indebtedness is incurred with the intent to convert such bridge Indebtedness to permanent financing that complies with clauses (i)(A) and (i)(B) above, and (ii) the only prepayments required to be made on such bridge Indebtedness shall be such prepayments as are customary for similar bridge financings in light of then-prevailing market conditions (as determined by the Company in consultation with the Administrative Agent);
(ii) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(iii) such Incremental Term Facility shall share ratably in any prepayments of the Term A Loan and any then outstanding Incremental Tranche A Term Loan pursuant to Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for the then outstanding Term Facilities); and
(iv) if such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the terms applicable to the Term A Loan, shall be reasonably acceptable to the Administrative Agent;
(j) in the case of an Incremental Term Facility that is an Incremental Tranche B Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Term B Loan and (2) the final maturity date of any then outstanding Incremental Tranche B Term Loan;
(B) the Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term B Loan or any then outstanding Incremental Tranche B Term Loan;
(C) if the All-In-Yield on such Incremental Term Facility exceeds the All-In-Yield on the Term B Loan or any then outstanding Incremental Tranche B Term Facility by more than 1/2 of one percent (0.50%) per annum, then the Applicable Rate or fees payable by the Borrowers with respect to the Term B Loan and each then outstanding Incremental Tranche B Term Facility shall on the effective date of such Incremental Term Facility be increased to the extent necessary to cause the All-In-Yield on the Term B Loan and each then outstanding Incremental Tranche B Term Facility to be 1/2 of one percent (0.50%) less than the All-In-Yield on such Incremental Term Facility (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Borrowers) (the “MFN Protection”); provided that, notwithstanding anything to the contrary in the foregoing clause (C), the provisions of this clause (C) shall not apply to any Incremental Tranche B Term Facility established after the first twelve (12) months following the Closing Date in relation to the Term B Loan or the original issuance date of any then existing Incremental Tranche B Term Facility, as the case may be; provided, further, that clauses (i)(A) and (i)(B) above shall not apply to (1) Inside Maturity Indebtedness and (2) bridge Indebtedness, so long as (i)(x) at the initial maturity of such bridge Indebtedness, such bridge Indebtedness shall automatically convert to (or would be required to be exchanged for) Indebtedness that complies with clauses (i)(A) and (i)(B) above, or (y) such bridge Indebtedness is incurred with the intent to convert such bridge Indebtedness to permanent financing that complies with clauses (i)(A) and (i)(B) above, and (ii) the only prepayments required to be made on such bridge Indebtedness shall be such prepayments as are customary for similar bridge financings in light of then-prevailing market conditions (as determined by the Company in consultation with the Administrative Agent);
(ii) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(iii) such Incremental Term Facility shall share ratably in any prepayments of the Term B Loan and any then outstanding Incremental Tranche B Term Loan pursuant to Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for the then outstanding Term Facilities); and
(iv) if such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the terms applicable to the Term B Loan, shall be reasonably acceptable to the Administrative Agent;
(k) in the case of any Incremental Revolving Increase with respect to the Revolving Facility:
(i) such Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins; provided that, subject to clause (ii) below, such Incremental Revolving Increase may be issued with a utilization fee and/or additional unused fee payable solely to the Lenders under such Incremental Revolving Increase) applicable to the Revolving Facility; and
(ii) the existing Lenders under the Revolving Facility shall on the effective date of such Incremental Revolving Increase make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility to the Lenders providing such Incremental Revolving Increase and the Administrative Agent may make such adjustments to the Register as are necessary so that, after giving effect to such assignments and adjustments, each Lender under the Revolving Facility (including the Lenders providing such Incremental Revolving Increase) will hold revolving loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility equal to its pro rata share thereof;
(l) the Company shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis to (without “netting” the cash proceeds of such Incremental Term LoanFacility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Company and assuming, in the case of any Incremental Facility that consists of an Incremental Revolving Increase, the full amount of such Incremental Facility is fully drawn) the Loan Parties would be in compliance with Pro Forma Compliance; and
(m) no Incremental Facility shall be (i) Guaranteed by any Person other than the financial covenants Guarantors, (ii) prior to the Collateral Release Date, secured by any property other than Collateral and (iii) on an after the Collateral Release Date, secured by any property; provided, further, that the conditions set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) foregoing proviso shall be treated substantially subject to the same as (and provisions of Section 1.10 in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount case of any Incremental Term Loan hereunder Facility used to finance a Limited Condition Acquisition. The Incremental Facility Commitments and credit extensions thereunder shall constitute Commitments and Credit Extensions under, and shall be in a minimum amount of $10,000,000 (entitled to all the benefits afforded by, this Agreement and in integral multiples of $10,000,000 in excess thereof)the other Loan Documents. To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing The Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to hereby authorize the Administrative Agent a new commitment agreement in form to enter into, and substance satisfactory the Lenders agree that this Agreement and the other Loan Documents shall be amended by, such Incremental Facility Amendments to the extent (and only to the extent) the Administrative Agent and its counsel.
deems necessary (b) If including, without limitation, amendments to permit the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of loans under such Incremental Term LoanFacility to be “fungible” (including for purposes of the Code) with any other then-existing Loans under this Agreement) in order to establish Incremental Facilities on terms consistent with and/or to effect the provisions of this Section 2.16. This Section 2.16 shall supersede any provisions in Section 10.01 to the contrary. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver each Lender as to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate effectiveness of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Facility Amendment.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Sources: Credit Agreement (Celestica Inc)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)Default, upon notice from the Administrative Borrower Company, on behalf of the Borrowers, to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers Company, on behalf of the Borrowers, may from time to time, request a new term loan an increase in the Aggregate Commitments by an amount (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans requests) not to exceed exceeding $150,000,00025,000,000; provided, however, PROVIDED that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right the maximum amount of payment with the existing Term Loans and shall have the same benefits of Aggregate Commitments after giving effect to any additional guaranties or collateral and such increase may not exceed $275,000,000, (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder request for an increase shall be in a minimum amount of $10,000,000 (and in integral multiples 5,000,000 or any whole multiple of $10,000,000 1,000,000 in excess thereof), and (iii) the Borrowers may make a maximum of three such requests. To achieve the full amount of a requested Incremental Term Loanincrease, the Borrowers Company, on behalf of the Borrowers, may solicit increased commitments from existing Lenders and/or and also invite additional Eligible Assignees to become Lenders; providedPROVIDED, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 SECTION 2.15 unless it specifically consents to such increase in writingwriting and no additional Eligible Assignee shall become a Lender unless its Commitment is at least $5,000,000. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) SECTION 2.15 shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Aggregate Commitments are increased in accordance with this SectionSECTION 2.15, the Administrative Agent and the Borrowers Company, on behalf of the Borrowers, shall determine the effective date (the “Incremental Term Loan Effective Date”"INCREASE EFFECTIVE DATE") and the final allocation of such Incremental Term Loanincrease. The Administrative Agent shall promptly notify the Administrative Borrower Company, on behalf of the Borrowers, and the Lenders of the final allocation of such Incremental Term Loan increase and the Incremental Term Loan Increase Effective Date and Schedule SCHEDULE 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers each Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party Borrower (i) certifying and attaching the resolutions adopted by such Loan Party Borrower approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loanincrease, (A) the representations and warranties contained in Article ARTICLE V and the other Loan Documents are true and correct on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.12SECTION 2.15, the representations and warranties contained in subsections (a) and (b) of Section 5.01 SECTION 5.13 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01SECTION 6.07, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party such Borrower pursuant to which each such Loan Party Borrower ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; and (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan increase is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; . The Borrowers shall prepay any Committed Loans outstanding on the Increase Effective Date (and (5pay any additional amounts required pursuant to SECTION 3.05) payment of to the extent necessary to keep the outstanding Committed Loans ratable with any applicable fee related to such revised Applicable Percentages arising from any nonratable increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)in the Commitments under this SECTION 2.15.
(c) This Section shall supersede any provisions in Sections 2.10 SECTIONS 2.14 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)At any time the Borrower may, upon notice from on the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to timeterms set forth below, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000that the Aggregate Commitments hereunder be increased; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) the Aggregate Commitments hereunder at no time shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and exceed $1,125,000,000, (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of each such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder request shall be in a minimum amount of at least $10,000,000 (and in integral multiples increments of $10,000,000 5,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept (iii) an increase in its the Aggregate Commitments hereunder may only be made at a time when no Default or Event of Default shall have occurred and be continuing, and (iv) no Lender’s Commitment pursuant to shall be increased under this Section 2.12 unless it specifically consents to 2.16 without its consent. In the event of such a requested increase in writing. Any the Aggregate Commitment, any financial institution which the Borrower invites to become a Lender or Eligible Assignee agreeing to increase its Commitment or provide may set the amount of its Commitment at a new Commitment pursuant level agreed to this Section 2.12 by the Borrower; provided that if such financial institution is not an existing Lender, (an “Incremental Term Loan Commitment”x) shall, in connection therewith, deliver to the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such financial institution’s becoming a new commitment agreement Lender if such consent would be required under Section 10.06(b) for an assignment of Revolving Loans to such Person and (y) such financial institution shall not be any Person prohibited from taking an assignment of Revolving Loans pursuant to Section 10.06(b)(v). In the event that the Borrower and one or more of the Lenders (or other financial institutions) shall agree upon such an increase in form and substance satisfactory to the Administrative Agent and its counsel.
Aggregate Commitments (bi) If the Commitments are increased in accordance with this SectionBorrower, the Administrative Agent and each Lender or other financial institution increasing its Commitment or extending a new Commitment shall enter into an amendment to this Agreement setting forth the Borrowers amounts of the Commitments, as so increased, providing that the financial institutions extending new Commitments shall determine be Lenders for all purposes under this Agreement, and setting forth such additional provisions as the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify consider reasonably appropriate to effectuate the Administrative Borrower and the Lenders provisions of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, this Section 2.16 and (ii) certifying thatthe Borrower shall furnish, before if requested, a new Note to each financial institution that is extending a new Commitment or increasing its Commitment. No such amendment shall require the approval or consent of any Lender whose Commitment is not being increased. Upon the execution and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as delivery of such earlier dateamendment as provided above, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor upon satisfaction of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if other conditions as the Incremental Term Loan is being provided by a Administrative Agent may reasonably specify upon the request of the financial institutions that are extending new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase Commitments (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without administering the consent reallocation of any other Lenderoutstanding Revolving Loans ratably among the Lenders after giving effect to each such increase in the Aggregate Commitments, may effect such amendments to and the delivery of certificates, evidence of corporate authority and legal opinions on behalf of the Borrower), this Agreement and the other Loan Documents as may shall be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, deemed to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanamended accordingly.
Appears in 1 contract
Sources: Revolving Credit Agreement (TJX Companies Inc /De/)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)at its option, the Borrowers may at any time or from time to timetime prior to the Termination Date, request increase the Total Commitments (each such increase, a new term loan (an “Commitment Increase” and the additional Commitments pursuant to each such Commitment Increase, “Incremental Term LoanCommitments”) in to an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000225,000,000400,000,000 (with each Commitment Increase being in a minimum aggregate principal amount of $5,000,000 (the “Minimum Increase Amount”) or a whole multiple of $1,000,000 in excess of the Minimum Increase Amount) by requesting that existing Lenders or new lenders commit to any such increase; provided that: (i) no Lender shall be required to commit to any such increase; (ii) no such increase shall become effective unless at the time thereof and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing, (B) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects, provided, howeverthat, that to the Borrowers extent any such representation and warranty is already qualified by materiality or reference to Material Adverse Effect, such representation shall be true and correct in all respects, and (C) the Administrative Agent shall have received a certificate from the Borrower to the effect of (A) and (B) of clause (ii); and (iii) no new lender shall become a Lender pursuant to this Section 2.21 unless such lender is an Eligible Assignee and the Administrative Agent shall have given its prior written consent, which consent shall not be unreasonably withheld. The Borrower shall be entitled to pay upfront or other fees to such lenders who extend credit pursuant to this Section 2.21 as the Borrower and such lenders may agree. Each Commitment Increase shall become effective on the date (each such date, an “Increased Facility Closing Date”) specified in an activation notice delivered to the Administrative Agent no less than ten (10) Business Days prior to the effective date of such notice specifying the amount of the increase and the effective date thereof. Each new lender that provides any part of any such increase in the Commitments (a Pro Forma Compliance Certificate demonstrating that“New Lender”) shall execute a New Lender Supplement (each, upon giving effect on a Pro Forma Basis “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such New Lender shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement to such Incremental Term Loanextent. On any Increased Facility Closing Date, subject to the Loan Parties would be in compliance with satisfaction of the financial covenants set forth in Section 6.10; foregoing terms and provided further that any Term Loan conditions, (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 Lenders shall be deemed to refer assign to the most recent financial statements furnished pursuant to subsections each Person with Incremental Commitments (aeach, an “Incremental Lender”) and (b), respectively, each of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation the Incremental Lenders shall be deemed to purchase from each Loan Party pursuant to which each of the Lenders, at the principal amount thereof, such Loan Party ratifies this Agreement and interests in the other Loan Documents and acknowledges and reaffirms Revolving Loans outstanding on such Increased Facility Closing Date as shall be necessary in order that, after giving effect to all such increaseassignments and purchases, it is bound the Revolving Loans will be held by all terms of this Agreement and the other Loan Documents; Lenders (3including Incremental Lenders) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then ratably in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment accordance with their respective Commitments after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor addition of such Lender if so requested by such Lender; Incremental Commitments to the Commitments, (ii) each Incremental Commitment shall be deemed for all purposes a Commitment and each Revolving Loan made thereunder (an “Incremental Loan”) shall be deemed for all purposes a Revolving Loan and (5iii) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such each Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided Lender that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each is a New Lender shall execute and deliver to Administrative Agent any other documentation as become a Lender in accordance with the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loanimmediately preceding sentence. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement terms and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, to implement to terms provisions of the Incremental Term Loan, including amortization, pricing, maturity, Loans and such other technical amendments as may Incremental Commitments shall be necessary or appropriate in substantially identical to the reasonable opinion terms and conditions of the Administrative Agent, the Lenders Revolving Loans and the Borrowers in connection with the establishment of such Incremental Term LoanCommitments.
Appears in 1 contract
Sources: Credit Agreement (M I Homes Inc)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)at its option, the Borrowers may at any time or from time to timetime prior to the Termination Date, request a increase the Total Commitments by requesting the existing Lenders or new term loan lenders to commit to any such increase; provided that: (an “Incremental Term Loan”i) in an aggregate amount for all no Lender shall be required to commit to any such Incremental Term Loans not to exceed $150,000,000increase; provided, however, that (ii) no such increase shall become effective unless at the Borrowers time thereof and after giving effect thereto (A) no Default or Event of Default shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating thatoccurred and be continuing, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be (B) Parent is in compliance with the financial covenants set forth in Section 6.107.1, (C) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects; provided that, to the extent any such representation and provided further that any Term Loan warranty is already qualified by materiality or reference to Material Adverse Effect, such representation shall be true and correct in all respects, and (iD) shall rank pari passu in right of payment with the existing Term Loans and Administrative Agent shall have received a certificate from the same benefits Borrower to the effect of any additional guaranties or collateral (A), (B) and (C) of clause (ii); (iii) no new lender shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in become a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 2.21 unless it specifically consents such lender is an Eligible Assignee and the Administrative Agent shall have given its prior written consent, which consent shall not be unreasonably withheld; and (iv) the Total Commitments after such increase shall not exceed $500,000,000. The Borrower shall be entitled to pay upfront or other fees to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment lenders who extend credit pursuant to this Section 2.12 2.21 as the Borrower and such lenders may agree. Such increases in the Commitments shall become effective on the date (each such date, an “Incremental Term Loan CommitmentIncreased Facility Closing Date”) shall, specified in connection therewith, deliver an activation notice delivered to the Administrative Agent a new commitment agreement in form no less than 10 Business Days prior to effective date of such notice specifying the amount of the increase and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date thereof. Each new lender that provides any part of any such increase in the Commitments (the a “Incremental Term Loan Effective DateNew Lender”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As execute a condition precedent to such increase, in addition to any deliveries pursuant to subsection New Lender Supplement (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lendereach, a Note in favor of such “New Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan AmendmentSupplement”), substantially in the form of Exhibit E, whereupon such New Lender shall become a Lender for all purposes and all Lenders not providing to the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing same extent as if originally a party hereto and maturity shall be determined bound by and entitled to the Borrowers and the Lendersbenefits of this Agreement. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date, the Lenders and Borrower shall borrow Revolving Loans under the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate relevant increased Commitments from each Lender participating in the reasonable opinion relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the Administrative Agentcase of Eurodollar Loans, of each Eurodollar Tranche) which would then have been outstanding from such Lender if (x) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (y) the Lenders and the Borrowers aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased, and, if applicable in connection with such increased Commitments, the establishment Borrower shall pay all amounts due under Section 2.17. The Adjusted LIBO Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the rate then applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar Tranche (or, until the expiration of the then-current Interest Period, such Incremental Term Loanother rate as shall be agreed upon between the Borrower and the relevant Lender).
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)Request for Increase. The Company may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to time, request by notice to the Administrative Agent (x) during the Availability Period one or more increases of the Commitments (each, a new “Term Loan Commitment Increase”) or (y) after the Availability Period has ended one or more term loan tranches to be made available to the Company (each, an “Incremental Term Loan”; each Incremental Term Loan and each Term Loan Commitment Increase, collectively, referred to as the “Incremental Increases”); provided that (i) in an aggregate the principal amount for all such Incremental Term Loans Increases in the aggregate since the Closing Date (including the then requested Incremental Increase) shall not to exceed $150,000,000500,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such request for an Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder Increase shall be in a minimum amount of $10,000,000 50,000,000 (or a lesser amount in the event such amount represents all remaining availability under this Section) and in integral multiples the Company may make a maximum of $10,000,000 in excess thereof). To achieve two such requests; (iii) no Term Loan Commitment Increase shall increase any Lender’s Commitment without the full amount consent of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenderssuch Lender; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “iv) each Incremental Term Loan Commitment”shall have an Applicable Rate or pricing grid as determined by the Lenders providing such Incremental Term Loans and the Company; and (v) shallexcept as provided above, in connection therewith, deliver all other terms and conditions applicable to the Administrative Agent a new commitment agreement in form and substance any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this SectionAgent, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the applicable Lenders of the final allocation of providing such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As Company (it being understood that if any terms taken as a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver whole are materially more favorable to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence providing such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”)than those applicable under this Agreement, and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be as reasonably determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the then that shall constitute a reasonable opinion of basis for the Administrative Agent, the Lenders and the Borrowers in connection Agent not to be satisfied with the establishment of such Incremental Term Loanterms).
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)Subject to the conditions set forth below, the Borrower may, upon at least ten (10) days (or such other period of time agreed to between the Agent and the Borrower) prior written notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify Agent, increase the Lenders), the Borrowers may Aggregate Commitments from time to time, request either by designating a new term loan lender not theretofore a Lender to become a Lender (such designation to be effective only with the prior written consent of the Agent which shall not be unreasonably withheld) or by agreeing with an “Incremental Term Loan”existing Lender that such Lender's Commitment shall be increased (thus increasing the Aggregate Commitments); provided that:
(i) no Default or Unmatured Default shall have occurred and be continuing hereunder as of the effective date of such increase;
(ii) The representations and warranties contained in Article V are true and correct as of the effective date of such increase in all material respects except to the extent any such representation or warranty is stated to relate solely to an aggregate earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date;
(iii) the amount for all of each such Incremental Term Loans increase in the Aggregate Commitments shall not be less than $5,000,000 (or such other minimum amount agreed to between the Agent and the Borrower), and shall not cause the Aggregate Commitments plus any New Credit Facilities to exceed $150,000,000; provided, however, that 195,000,000;
(iv) the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide lender not theretofore a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shallLender, in connection therewith, shall execute and deliver to the Administrative Agent Agent, a new commitment agreement lender addition and acknowledgement Agreement in form and substance satisfactory to the Administrative Agent (each such agreement, a "Lender Addition and Acknowledgment Agreement") and acknowledged by the Agent and each Borrower;
(v) no existing Lender shall be obligated in any way to increase its counselCommitment;
(vi) the Agent shall consent to such increase; and
(vii) the Agent shall have received such supplemental opinions, resolutions, certificates and other documents as the Agent may reasonably request. Upon the execution, delivery, acceptance and recording of the Lender Addition and Acknowledgement Agreement, from and after the effective date specified in a Lender Addition and Acknowledgement Agreement, such existing Lender shall have a Commitment as therein set forth or such other Lender shall become a Lender with a Commitment as therein set forth and all the rights and obligations of a Lender with such a Commitment hereunder. Upon its receipt of a Lender Addition and Acknowledgement Agreement together with any note or notes, if requested, subject to such addition and assumption and the written consent to such addition and assumption, the Agent shall, if such Lender Addition and Acknowledgement Agreement has been completed and the other conditions described in this Section 2.28(a) have been satisfied: (x) accept such Lender Addition and Acknowledgement Agreement; (y) record the information contained therein in the Register; and (z) give prompt notice thereof to the Lenders and the Borrower and deliver to the Lenders a schedule reflecting the new Commitments. The Lenders (new or existing) shall accept an assignment from the existing Lenders, and the existing Lenders shall make an assignment to the new or existing Lender accepting a new or increased Commitment, of a direct or participation interest in each then outstanding Loans and Letter of Credit such that, after giving effect thereto, all Outstanding Credit Exposure hereunder is held ratably by the Lenders in proportion to their respective Commitments. Assignments pursuant to the preceding sentence shall be made in exchange for the principal amount assigned plus accrued and unpaid interest and facility and letter of credit fees. The Borrower shall make any payments under Section 3.4 resulting from such assignments.
(b) If Subject to the Commitments are increased in accordance with this Sectionconditions set forth below, the Administrative Borrower may, upon at least ten (10) days (or such other period of time agreed to between the Agent and the Borrowers Borrower) prior written notice to the Agent, request a new credit facility which is a revolving credit facility, a term loan or other credit facility (a “New Credit Facility”); provided that:
(i) no Default or Unmatured Default shall determine have occurred and be continuing hereunder as of the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and ;
(ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of the effective date of such increase in all material respects except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date;
(iii) the amount of each such New Credit Facility shall not be less than $5,000,000 (or such other minimum amount agreed to between the Agent and the Borrower), and except that shall not cause the sum of (x) the Aggregate Commitments plus (y) the outstanding amount of any such New Credit Facility (and any other New Credit Facilities established under this Section 2.22(b)) to exceed $195,000,000;
(iv) the Borrowers and any applicable Lender or lender not theretofore a Lender, shall execute and deliver to the Agent, a Lender Addition and Acknowledgement Agreement, in form and substance satisfactory to the Agent and acknowledged by the Agent and each Borrower;
(v) no existing Lender shall be obligated in any way to make or participate in any New Credit Facility;
(vi) the Agent shall consent to such increase;
(vii) the Agent shall have received such supplemental opinions, resolutions, certificates and other documents as the Agent may reasonably request;
(viii) the interest rates and fees and Agreed Currencies and other terms applicable to the New Credit Facility shall be determined by the Agent, the Borrower, and the lenders thereunder;
(ix) the loans and other advances under such New Credit Facilities shall constitute Credit Extensions for all purposes of this Section 2.12, the representations and warranties contained in subsections Loan Documents;
(ax) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents may be amended in a writing executed and acknowledges delivered by the Borrower and reaffirms that, after giving the Agent to reflect any changes necessary to give effect to such increaseNew Credit Facility in accordance with its terms as set forth herein, it is bound by all terms of this Agreement and which may include the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor addition of such Lender reflecting New Credit Facility as a separate facility; and
(xi) such Lender’s Commitment after giving effect to such increase; New Credit Facility is on the same terms and conditions as those set forth in this Agreement, except as set forth in clause (4vii), (viii) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5x) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 above or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative extent satisfactory to the Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term LoanBorrower.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)at its option, the Borrowers may at any time or from time to timetime prior to the Termination Date, request increase the Total Commitments (each such increase, a new term loan (an “Commitment Increase” and the additional Commitments pursuant to each such Commitment Increase, “Incremental Term LoanCommitments”) in to an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000600,000,000700,000,000 (with each Commitment Increase being in a minimum aggregate principal amount of $5,000,000 (the “Minimum Increase Amount”) or a whole multiple of $1,000,000 in excess of the Minimum Increase Amount) by requesting that existing Lenders or new lenders commit to any such increase; provided that: (i) no Lender shall be required to commit to any such increase; (ii) no such increase shall become effective unless at the time thereof and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing, (B) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects, provided, howeverthat, that to the Borrowers extent any such representation and warranty is already qualified by materiality or reference to Material Adverse Effect, such representation shall be true and correct in all respects, and (C) the Administrative Agent shall have received a certificate from the Borrower to the effect of (A) and (B) of clause (ii); and (iii) no new lender shall become a Lender pursuant to this Section 2.21 unless such lender is an Eligible Assignee and the Administrative Agent shall have given its prior written consent, which consent shall not be unreasonably withheld. The Borrower shall be entitled to pay upfront or other fees to such lenders who extend credit pursuant to this Section 2.21 as the Borrower and such lenders may agree. Each Commitment Increase shall become effective on the date (each such date, an “Increased Facility Closing Date”) specified in an activation notice delivered to the Administrative Agent no less than ten (10) Business Days prior to the effective date of such notice specifying the amount of the increase and the effective date thereof. Each new lender that provides any part of any such increase in the Commitments (a Pro Forma Compliance Certificate demonstrating that“New Lender”) shall execute a New Lender Supplement (each, upon giving effect on a Pro Forma Basis “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such New Lender shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement to such Incremental Term Loanextent. On any Increased Facility Closing Date, subject to the Loan Parties would be in compliance with satisfaction of the financial covenants set forth in Section 6.10; foregoing terms and provided further that any Term Loan conditions, (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 Lenders shall be deemed to refer assign to the most recent financial statements furnished pursuant to subsections each Person with Incremental Commitments (aeach, an “Incremental Lender”) and (b), respectively, each of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation the Incremental Lenders shall be deemed to purchase from each Loan Party pursuant to which each of the Lenders, at the principal amount thereof, such Loan Party ratifies this Agreement and interests in the other Loan Documents and acknowledges and reaffirms Revolving Loans outstanding on such Increased Facility Closing Date as shall be necessary in order that, after giving effect to all such increaseassignments and purchases, it is bound the Revolving Loans will be held by all terms of this Agreement and the other Loan Documents; Lenders (3including Incremental Lenders) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then ratably in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment accordance with their respective Commitments after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor addition of such Lender if so requested by such Lender; Incremental Commitments to the Commitments, (ii) each Incremental Commitment shall be deemed for all purposes a Commitment and each Revolving Loan made thereunder (an “Incremental Loan”) shall be deemed for all purposes a Revolving Loan and (5iii) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such each Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided Lender that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each is a New Lender shall execute and deliver to Administrative Agent any other documentation as become a Lender in accordance with the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loanimmediately preceding sentence. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement terms and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, to implement to terms provisions of the Incremental Term Loan, including amortization, pricing, maturity, Loans and such other technical amendments as may Incremental Commitments shall be necessary or appropriate in substantially identical to the reasonable opinion terms and conditions of the Administrative Agent, the Lenders Revolving Loans and the Borrowers in connection with the establishment of such Incremental Term LoanCommitments.
Appears in 1 contract
Sources: Credit Agreement (M/I Homes, Inc.)
Increase in Commitments. Subject to the terms and conditions set forth herein, the Borrower Representative shall have the one-time right, to be exercised at any time prior to the earlier of (ai) Provided there exists no Default the date that is two (2) years following the Closing Date or (ii) the exercise of its option to decrease the Aggregate Committed Amount under Section 2.01(c) below, cause an increase in the Aggregate Committed Amount by up to Thirty Million Dollars ($30,000,000) (to an aggregate amount not more than Two Hundred Thirty Million Dollars ($230,000,000)); provided that such increase shall be conditioned and no Default would result therefrom), effective upon notice the satisfaction of the following conditions:
(i) the Borrowers shall obtain commitments for the amount of the increase from existing Lenders or other commercial banks or financial institutions reasonably acceptable to the Administrative Borrower Agent, which other commercial banks and financial institutions shall join in this Credit Agreement as Lenders by a Lender Joinder Agreement substantially in the form of Exhibit F attached hereto or other arrangement reasonably acceptable to the Administrative Agent (which it being understood that in no case shall promptly notify any Lender be required to increase its Commitment without its written consent);
(ii) if any Advances are outstanding at the Lenders)time of any such increase, the Borrowers shall make such payments and adjustments on the Advances (including payment of any break-funding amounts owing under Section 3.05) as may from time be necessary to timegive effect to the revised commitment percentages and commitment amounts;
(iii) the Borrowers shall pay to the Administrative Agent the following fees for payment to each Lender making such increased commitment, request a new term loan commitment fee equal to one percent (an “Incremental Term Loan”1%) in an aggregate amount for all of the increase to the Aggregate Committed Amount of such Incremental Term Loans not to exceed $150,000,000; provided, however, that Lender.
(iv) the Borrowers shall have delivered executed any new or amended and restated Notes (to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis extent requested by the Lenders) to such Incremental Term Loan, reflect the Loan Parties would be in compliance with revised commitment amounts; and
(v) the financial covenants conditions to the making of an Advance set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) 4.02 shall be treated substantially the same as (and in satisfied. In connection with any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing the Commitments, Schedule 2.01 shall be revised to increase its reflect the modified Commitments and Commitment or Percentages of the Lenders, and the Borrowers shall provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shallsupporting corporate resolutions, in connection therewithlegal opinions, deliver to the Administrative Agent a new commitment agreement in form promissory notes and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, other items as may be reasonably requested by the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loantherewith.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (SEI may at any time and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to time, by delivery to the Administrative Agent of a written notice signed by a Responsible Officer of SEI (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the addition of a new tranche of term loan loans (an “Incremental Term LoanFacility”) or an increase in the Aggregate Commitments (an aggregate amount for all “Incremental Revolving Commitment”) or a combination thereof; provided that at the time of any such request and upon the effectiveness of the Incremental Term Loans not Facility Amendment referred to exceed $150,000,000; providedbelow, however(i) no Default or Event of Default shall exist, that the Borrowers and (ii) SEI shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in pro forma compliance with the financial covenants set forth in Section 6.10; 7.01 (as demonstrated in a Compliance Certificate executed by a Responsible Officer of SEI). Each Incremental Term Facility or Incremental Revolving Commitment shall be in an aggregate principal amount not less than $15,000,000 (or such lesser amount as may be acceptable to the Administrative Agent), and provided further that any the aggregate principal amount of all such Incremental Term Loan Facilities and Incremental Revolving Commitments shall not exceed $50,000,000. Each Incremental Term Facility (ia) shall rank pari passu or junior in right of payment and of security with the existing Loans (and any such Incremental Term Loans and Facility which is junior in right of payment shall have customary second lien, subordination, standstill and other provisions reasonably acceptable to the same benefits of any additional guaranties or collateral Administrative Agent), (b) shall not mature earlier than the Maturity Date, (c) shall have a weighted average life and contain terms as to prepayments and amortization that are acceptable to the Administrative Agent, and (iid) shall be treated substantially the same as (and not contain additional or different covenants or financial covenants which are more restrictive in any event no more favorably than) material respect than the existing Term Loans. The applicable Lenders shall approve covenants in the maturity, amortization, pricing, funding and other terms Loan Documents at the time of the incurrence of such Incremental Term LoanFacility unless either such covenants benefit all of the Lenders or are otherwise consented to by the Administrative Agent. The aggregate Any such notice shall set forth the amount and terms of any the relevant Incremental Term Loan hereunder Facility or Incremental Revolving Commitment requested by SEI and to be agreed by any Lenders or Additional Lenders (as herein defined) under such Incremental Term Facility or providing such Incremental Revolving Commitment. SEI may arrange for one or more banks or other financial institutions or, in the case of an Incremental Term Facility, institutional investors, each of which shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance and, with this Sectionrespect only to Incremental Revolving Commitments, the Administrative Agent Swing Line Lender and the Borrowers shall determine L/C Issuer (any such bank or other financial institution being called an “Additional Lender”), to extend commitments under the effective date (the “Incremental Term Loan Effective Date”) Facility or provide a portion of the Incremental Revolving Commitment, and the final allocation each existing Lender shall be afforded an opportunity, but shall not be required, to provide a portion of any such Incremental Term Facility or provide a portion of such Incremental Term LoanRevolving Commitment. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders Commitments in respect of the final allocation of such any Incremental Term Loan Facility or any Incremental Revolving Commitment shall become Commitments under this Agreement, and the Incremental Term Loan Effective Date and Schedule 2.01 hereto each Additional Lender shall be deemed amended to reflect such increase and final allocation. As become a condition precedent to such increaseLender under this Agreement, in addition to any deliveries pursuant to subsection an amendment (aan “Incremental Facility Amendment”) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms thatand, after giving effect to such increaseas appropriate, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided , executed by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Agent. An Incremental Term Loan. The Incremental Term Loan AmendmentFacility Amendment may, without the consent of any other LenderLenders, may effect such amendments to this Agreement and the other Loan Documents as may to the extent (but only to the extent) necessary to effect the provisions of this Section. The effectiveness of any Incremental Facility Amendment shall be necessary or appropriate, in subject to the reasonable opinion satisfaction on the date thereof of each of the Administrative Agent, the Lenders and the Borrowers, conditions set forth in Section 4.02 (it being understood that all references to implement to terms “date of the Incremental Term Loan, including amortization, pricing, maturity, and applicable Credit Extension” in such other technical amendments as may Section 4.02 shall be necessary or appropriate in deemed to refer to the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment effective date of such Incremental Facility Amendment). The proceeds of any Incremental Term LoanFacility or any Incremental Revolving Commitment will be used for working capital, capital expenditures, acquisitions and other general corporate purposes not in contravention of any Law or of any Loan Document. No Incremental Revolving Commitment shall increase the sublimit for Letters of Credit or Swing Line Loans without the consent of the L/C Issuer or the Swing Line Lender, as applicable. This Section shall supersede any provisions in Sections 2.13 or 10.01 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)at its option, the Borrowers may at any time or from time to timetime prior to the Termination Date, request increase the Total Commitments (each such increase, a new term loan (an “Commitment Increase” and the additional Commitments pursuant to each such Commitment Increase, “Incremental Term LoanCommitments”) in to an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000500,000,000600,000,000 (with each Commitment Increase being in a minimum aggregate principal amount of $5,000,000 (the “Minimum Increase Amount”) or a whole multiple of $1,000,000 in excess of the Minimum Increase Amount) by requesting that existing Lenders or new lenders commit to any such increase; provided that: (i) no Lender shall be required to commit to any such increase; (ii) no such increase shall become effective unless at the time thereof and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing, (B) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects, provided, howeverthat, that to the Borrowers extent any such representation and warranty is already qualified by materiality or reference to Material Adverse Effect, such representation shall be true and correct in all respects, and (C) the Administrative Agent shall have received a certificate from the Borrower to the effect of (A) and (B) of clause (ii); and (iii) no new lender shall become a Lender pursuant to this Section 2.21 unless such lender is an Eligible Assignee and the Administrative Agent shall have given its prior written consent, which consent shall not be unreasonably withheld. The Borrower shall be entitled to pay upfront or other fees to such lenders who extend credit pursuant to this Section 2.21 as the Borrower and such lenders may agree. Each Commitment Increase shall become effective on the date (each such date, an “Increased Facility Closing Date”) specified in an activation notice delivered to the Administrative Agent no less than ten (10) Business Days prior to the effective date of such notice specifying the amount of the increase and the effective date thereof. Each new lender that provides any part of any such increase in the Commitments (a Pro Forma Compliance Certificate demonstrating that“New Lender”) shall execute a New Lender Supplement (each, upon giving effect on a Pro Forma Basis “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such New Lender shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement to such Incremental Term Loanextent. On any Increased Facility Closing Date, subject to the Loan Parties would be in compliance with satisfaction of the financial covenants set forth in Section 6.10; foregoing terms and provided further that any Term Loan conditions, (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 Lenders shall be deemed to refer assign to the most recent financial statements furnished pursuant to subsections each Person with Incremental Commitments (aeach, an “Incremental Lender”) and (b), respectively, each of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation the Incremental Lenders shall be deemed to purchase from each Loan Party pursuant to which each of the Lenders, at the principal amount thereof, such Loan Party ratifies this Agreement and interests in the other Loan Documents and acknowledges and reaffirms Revolving Loans outstanding on such Increased Facility Closing Date as shall be necessary in order that, after giving effect to all such increaseassignments and purchases, it is bound the Revolving Loans will be held by all terms of this Agreement and the other Loan Documents; Lenders (3including Incremental Lenders) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then ratably in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment accordance with their respective Commitments after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor addition of such Lender if so requested by such Lender; Incremental Commitments to the Commitments, (ii) each Incremental Commitment shall be deemed for all purposes a Commitment and each Revolving Loan made thereunder (an “Incremental Loan”) shall be deemed for all purposes a Revolving Loan and (5iii) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such each Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided Lender that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each is a New Lender shall execute and deliver to Administrative Agent any other documentation as become a Lender in accordance with the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loanimmediately preceding sentence. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement terms and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, to implement to terms provisions of the Incremental Term Loan, including amortization, pricing, maturity, Loans and such other technical amendments as may Incremental Commitments shall be necessary or appropriate in substantially identical to the reasonable opinion terms and conditions of the Administrative Agent, the Lenders Revolving Loans and the Borrowers in connection with the establishment of such Incremental Term LoanCommitments.
Appears in 1 contract
Sources: Credit Agreement (M/I Homes, Inc.)
Increase in Commitments. (ai) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower Subject to the Administrative Agent conditions set forth in clauses (which shall promptly notify the Lendersii) and (iii) of this Section 2.02(a), the Co-Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall the aggregate Commitments be increased one or more times, 4812-0911-1547, v. 7 in each case in a minimum amount of $10,000,000 (and 2,500,000 or in integral multiples of $10,000,000 2,500,000 in excess thereof). To achieve ; provided that the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to aggregate Commitments after any such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counselmay not exceed $250,000,000.
(bii) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of Each such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto increase shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of effective only upon the following in form and substance satisfactory to the Administrative Agentconditions being satisfied: (1A) a certificate no Default or Event of each Loan Party dated as of Default has occurred and is continuing at the Incremental Term Loan Effective Date time thereof or would be caused thereby, (in sufficient copies for each LenderB) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, immediately before and after giving effect to such Incremental Term Loanincrease, the Loan Parties shall be in pro forma compliance with the financial covenants in Section 7.09, together with calculations and any supporting documentation demonstrating such pro forma compliance in form and substance reasonably satisfactory to the Agent, (AC) either the Banks having Commitments hereunder at the time the increase is requested agree to increase their Commitments in their sole discretion in the amount of the requested increase or other financial institutions agree to make a Commitment in the amount of the difference between the amount of the increase requested by the Co-Borrowers and the amount by which some or all of the Banks having Commitments hereunder at the time the increase is requested agree to increase their Commitments, (D) such increase shall be subject to the approval of the Agent and the Issuing Banks, which consent shall not be unreasonably withheld, conditioned or delayed, (E) such Banks and other financial institutions, if any, shall have executed and delivered to the Agent a Commitment Increase Agreement or a New Bank Agreement, as applicable, and (F) the representations Co-Borrowers shall have delivered such evidence of authority for the increase (including without limitation, certified resolutions of the applicable managers and/or members of the Co-Borrowers authorizing such increase) as the Agent may reasonably request.
(iii) Each financing institution to be added to this Agreement as described in Section 2.02(a)(ii)(C) above shall execute and warranties contained deliver to the Agent a New Bank Agreement, pursuant to which it becomes a party to this Agreement. Each Bank agreeing to increase its Commitment as described in Article V Section 2.02(a)(ii)(C) shall execute and deliver to the Agent a Commitment Increase Agreement pursuant to which it increases its Commitment hereunder. In addition, to the extent required by the applicable Bank, a Responsible Officer shall execute and deliver to the Agent, for each Bank being added to this Agreement, a Note payable to such new Bank in the principal amount of the Commitment of such Bank, and for each Bank increasing its Commitment, a Note (replacement Note, if applicable) payable to such Bank, in the principal amount of the increased Commitment of such Bank. Each such Note shall be dated the effective date of the pertinent New Bank Agreement or Commitment Increase Agreement. In the event a replacement Note is issued to a Bank, such Bank shall ▇▇▇▇ the original note as “REPLACED” and shall return such original Note to the Co-Borrowers. Upon execution and delivery to the Agent of the Note (if required by the applicable Bank) and the other Loan Documents are true execution by 4812-0911-1547, v. 7 the Agent of the relevant New Bank Agreement or Commitment Increase Agreement, as the case may be, such new financing institution shall constitute a “Bank” hereunder with a Commitment as specified therein, or such existing Bank’s Commitment shall increase as specified therein, as the case may be, and correct the Agent shall notify the Co-Borrowers and all Banks of such additions or increases, and the final allocations thereof, and provide a revised Schedule 2.01 reflecting such additions or increases together with a schedule showing the revised Working Capital Advance Cap and L/C Cap as increased pursuant to Section 2.02(b) below.
(iv) Notwithstanding anything to the contrary in this Section 2.02(a), the Banks having Commitments hereunder at the time any such increase is requested shall have the first right, but shall not be obligated, to participate in such increase by agreeing to increase their respective Commitments by their Credit Percentage to the extent of such increase. The Agent shall not, and shall not be obligated to, permit any financial institutions that do not have, at that time, Commitments hereunder to make commitments for portions of the requested increase not assumed by the Banks having Commitments hereunder until each of such Banks have agreed to increase their Commitments or declined to do so. To facilitate the Banks’ right of first refusal, HoldCo shall, by written notice to the Agent (which shall promptly deliver a copy to each Bank) given not less than 15 days prior to the requested effective date of the increase in Commitments (the “Increase Effective Date”), request that the Banks increase their Commitments. Each Bank shall, by notice to HoldCo and the Agent given not later than 15 days following receipt of HoldCo’s request, advise HoldCo whether or not it will increase its Commitment as of the Increase Effective Date. Any Bank that has not so advised HoldCo and the Agent by such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 day shall be deemed to refer have declined to agree to such increase in its Commitment. The decision to increase its Commitment hereunder shall be at the most recent financial statements furnished pursuant to subsections sole discretion of each Bank.
(av) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms thatIf, after giving effect to such increaseany increase under this Section 2.02(a), it is bound by all terms of this Agreement and the other Loan Documents; (3) if outstanding Working Capital Loans would not be held pro rata in accordance with the Incremental Term Loan is being provided by an existing Lendernew Commitments, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase Banks (including, without limitation, any new Bank) shall, on the effective date of the applicable arrangementincrease, upfront and/or administrative feemake advances among themselves so that after giving effect thereto the Working Capital Loans will be held by the Banks (including, without limitation, any new Banks).
, on a pro rata basis in accordance with their respective Commitments hereunder (c) This Section shall supersede any provisions in Sections 2.10 or 10.01 after giving effect to the contrary.
(d) The Borrowers, Guarantors, Administrative applicable increase). Each Bank agrees to wire immediately available funds to the Agent and the Lenders shall enter into an amendment of in accordance with this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers required by Agent in connection with the establishment foregoing. Upon the effective date of each increase under this Section 2.02(a), the Commitments of the Banks shall reflect the changes contemplated under the applicable New Bank Agreement and/or Commitment Increase Agreement without any further action or consent of any party, and each Bank hereby agrees to the 4812-0911-1547, v. 7 reallocation of the Commitments as necessary (but, for the avoidance of doubt, not any change in such Incremental Term LoanBank’s Commitment unless otherwise agreed in writing) such that after giving effect thereto, all Banks shall hold Working Capital Loans in their respective Pro Rata Shares (after giving effect to the applicable increase).
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)At any time, the Borrowers may from time Borrower may, if it so elects, increase the amount of the Total Revolving Credit Commitment (each such increase to time, request a new term loan (an “Incremental Term Loan”) be in an aggregate amount for of not less than $25,000,000), either by designating a financial institution or institutions (or other Person) not theretofore Lenders to become Lenders (such designation to be effective only if each such financial institution (or other Person) accepts a Commitment of not less than $5,000,000) or by agreeing with an existing Lender or Lenders that such Lender’s or Lenders’ Revolving Credit Commitments shall be increased. Upon execution and delivery by the Borrower and such Lender or Lenders or other financial institution or institutions (or other Person) of an instrument (a “Commitment Acceptance”) substantially in the form of Exhibit E hereto, with such written consents of the Issuing Lender, each Swing Line Lender and the Agent as would be required in the case of an assignment of a Revolving Credit Commitment to such Person, such existing Lender or Lenders shall have additional Revolving Credit Commitments as therein set forth or such other financial institution or institutions (or other Person) shall become Lenders with Revolving Credit Commitments as therein set forth and with all the rights and obligations of Lenders with such Incremental Term Loans not to exceed $150,000,000Revolving Credit Commitments hereunder; provided, however, that provided that:
(i) the Borrowers Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on copy of the Commitment Acceptance (a Pro Forma Basis copy of which the Agent shall promptly deliver to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and each Lender);
(ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12increase, the representations and warranties of the Loan Parties contained in subsections (a) and (b) Article 3 of Section 5.01 this Agreement shall be deemed true in all material respects;
(iii) at the time of such increase, no Default shall have occurred and be continuing or would result from such increase;
(iv) after giving effect to refer to such increase (assuming for such purpose that Revolving Credit Loans in the most recent financial statements furnished pursuant to subsections (a) and (bfull amount of the Total Revolving Credit Commitment were outstanding), respectively, of Section 6.01, and the Incurrence Test would be met;
(Bv) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, the Total Revolving Credit Commitment shall not exceed, by more than $50,000,000, the Total Revolving Credit Commitment in effect on the ARCA Effective Date minus any decreases in the Total Revolving Credit Commitment made pursuant to Section 2.11 or Section 2.12 following the ARCA Effective Date; and
(vi) the Agent shall have received such evidence (including an opinion of counsel for the Loan Parties) as it is bound may reasonably request to confirm the due authorization of the transactions contemplated by all terms of this Agreement Section and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, validity and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion enforceability of the Administrative Agent, the Lenders and the Borrowers, to implement to terms obligations of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term LoanLoan Parties resulting therefrom.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Tower International, Inc.)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Company may, upon by written notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify deliver a copy to the Lenders), executed by the Borrowers may from time Company and one or more financial institutions (any such financial institution referred to time, request a new term loan (in this Section being called an “Incremental Term LoanIncreasing Lender”), which may include any Lender, cause Commitments to be made available by the Increasing Lenders (or cause the Commitments of the Increasing Lenders to be increased, as the case may be) in an amount not less than US$10,000,000 and in an aggregate amount that is an integral multiple of US$1,000,000 for all each Increasing Lender set forth in such Incremental Term Loans not to exceed $150,000,000; notice, provided, however, that (a) the Borrowers aggregate amount of all new Commitments and increases in existing Commitments pursuant to this paragraph during the term of this Agreement shall have delivered in no event exceed US$500,000,000, (b) each Increasing Lender, if not already a Lender hereunder, shall be subject to the Administrative approval of the Agent (which approval shall not be unreasonably withheld) and (c) each Increasing Lender, if not already a Lender hereunder, shall become a party to this Agreement by completing and delivering to the Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, duly executed Accession Agreement substantially in the Loan Parties would be in compliance with the financial covenants form set forth in Exhibit G (an “Accession Agreement”). New Commitments and increases in Commitments pursuant to this Section 6.10; shall become effective on the date specified in the applicable notices delivered pursuant to this Section. Upon the effectiveness of any Accession Agreement to which any Increasing Lender is a party, such Increasing Lender shall thereafter be deemed to be a party to this Agreement and provided further that shall be entitled to all rights, benefits and privileges accorded a Lender hereunder and subject to all obligations of a Lender hereunder. Notwithstanding the foregoing, no increase in the aggregate Commitments (or in the Commitment of any Term Loan (iLender) shall rank pari passu in right become effective under this Section unless, on the date of payment with such increase, the existing Term Loans and Agent shall have received a certificate, dated as of the same benefits effective date of any additional guaranties such increase and executed by the chief financial officer or collateral the chief accounting officer of the Company, to the effect that the conditions set forth in clauses (b), (c) and (iid) of Section 4.02 shall be treated substantially the same as satisfied (and with all references in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall clauses to a Borrowing being deemed to be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereofreferences to such increase). To achieve the full amount Following any extension of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an new Commitment or increase in its of a Lender’s Commitment pursuant to this Section 2.12 unless it specifically consents 2.18, any Loans outstanding prior to the effectiveness of such extension or increase in writing. Any Lender shall remain outstanding until the ends of the respective Interest Periods applicable thereto, and shall then be repaid or Eligible Assignee agreeing to increase its Commitment or provide a refinanced with new Commitment Loans made pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased 2.01 ratably in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders respective Commitments of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Lenders.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Sources: Credit Agreement (DOVER Corp)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)at its option, the Borrowers may at any time or from time to timetime prior to the Termination Date, request a new term loan increase the Total Commitments by up to $100,000,000417,500,000 (an the “Incremental Term LoanCommitment Increase”) in to an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000880,000,0001,252,500,000 by requesting the existing Lenders or new lenders to commit to any such increase; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating provided that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan : (i) no Lender shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of be required to commit to any additional guaranties or collateral and such increase; (ii) no such increase shall become effective unless at the time thereof and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing, (B) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be treated substantially true and correct in all material respects, provided, that, to the same as (extent any such representation and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturitywarranty is already qualified by materiality or reference to Material Adverse Effect, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder representation shall be true and correct in all respects, and (C) Administrative Agent shall have received a minimum amount certificate from Borrower to the effect of $10,000,000 (A) and in integral multiples (B) of $10,000,000 in excess thereofclause (ii). To achieve the full amount of ; and (iii) no new lender shall become a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 2.21 unless it specifically consents such lender is an Eligible Assignee and Administrative Agent shall have given its prior written consent, which consent shall not be unreasonably withheld. Borrower shall be entitled to pay upfront or other fees to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment lenders who extend credit pursuant to this Section 2.12 2.21 as Borrower and such lenders may agree. Any increase in the Total Commitments shall be a Class A Commitment. Such increases in the Commitments shall become effective on the date (each such date, an “Incremental Term Loan CommitmentIncreased Facility Closing Date”) shall, specified in connection therewith, deliver an activation notice delivered to the Administrative Agent a new commitment agreement in form no less than ten (10) Business Days prior to effective date of such notice specifying the amount of the increase and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date thereof. Each new lender that provides any part of any such increase in the Commitments (the a “Incremental Term Loan Effective DateNew Lender”) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such New Lender shall become a Lender for all purposes and to the final allocation same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. Unless otherwise agreed by Administrative Agent, on each Increased Facility Closing Date, Borrower shall borrow Revolving Loans under the relevant increased Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Term Benchmark Loans, of each Tranche) which would then have been outstanding from such Incremental Term LoanLender if (x) each such Type or Tranche had been borrowed or effected on such Increased Facility Closing Date and (y) the aggregate amount of each such Type or Tranche requested to be so borrowed or effected had been proportionately increased, and, if applicable in connection with such increased Commitments, Borrower shall pay all amounts due under Section 2.17. The Administrative Agent Term Benchmark Rate applicable to any Term Benchmark Loan borrowed pursuant to the preceding sentence shall promptly notify equal the Administrative rate then applicable to the Term Benchmark Loans of the other Lenders in the same Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each relevant Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (From time to time on and no Default would result therefrom)after the Closing Date and prior to the Termination Date, the Parent Borrower may, upon at least 30 days’ notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify provide a copy of such notice to the Lenders), propose to increase the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that of the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that Revolving Commitments of any Term Loan Class by an amount which (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturityis not less than $100,000,000 or, amortizationif greater, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in an integral multiples multiple of $10,000,000 in excess thereof), with respect to any such request and (ii) when aggregated with all prior and concurrent increases in the Revolving Commitments of all Classes pursuant to this Section 2.21, is not in excess of $400,000,000. To achieve The Parent Borrower may increase the full aggregate amount of the Revolving Commitments by (x) having another lender or lenders (each, an “Additional Lender”) become party to this Agreement, (y) agreeing with any Lender (with the consent of such Lender in its sole discretion) to increase its Revolving Commitment hereunder (each, an “Increasing Lender”) or (z) a requested Incremental Term Loan, combination of the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lendersprocedures described in clauses (x) and (y) of this sentence; provided, however, provided that no existing Lender shall be obligated and/or required to accept an increase its Revolving Commitment without its consent.
(b) Any increase in its Commitment the Revolving Commitments pursuant to this Section 2.12 unless it specifically consents 2.21 shall be subject to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 satisfaction of the following conditions:
(an “Incremental Term Loan Commitment”i) shall, in connection therewith, Each Borrower shall deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) applicable increase date signed by a Responsible an Authorized Officer of such Loan Party (i) Borrower certifying and attaching the resolutions adopted by such Loan Party Borrower approving or consenting to such increase, and ;
(ii) certifying thatEach of the representations and warranties contained in Article IV qualified as to materiality shall be true and correct and those not so qualified shall be true and correct in all material respects, in each case on and as of such date of increase with the same effect as if made on and as of such date, both immediately before and after giving effect to such Incremental Term Loanincrease (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, (A) the representations and warranties contained in Article V and the other Loan Documents are which case such representation or warranty shall be true and correct as of such earlier date, and except that for purposes ); and
(iii) At the time of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms no Default or Event of this Agreement Default shall have occurred and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to be continuing or would result from such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Upon any increase in the amount of the Revolving Commitments pursuant to this Section 2.21 (each, an “Additional Commitment”):
(i) Each Additional Lender or Increasing Lender shall supersede any provisions enter into a Joinder Agreement pursuant to which such Additional Lender and/or Increasing Lender shall, as of the effective date of such increase, undertake an Additional Commitment (or, in Sections 2.10 or 10.01 the case of an Increasing Lender, pursuant to which such Increasing Lender’s Revolving Commitment shall be increased in the contraryagreed amount on such date) and such Additional Lender shall thereupon become (or, if an Increasing Lender, continue to be) a “Lender” for all purposes hereof.
(dii) The BorrowersEach Borrower shall, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriateapplicable, in the reasonable opinion of coordination with the Administrative Agent, repay all outstanding Loans of the affected Class and incur additional Loans of the affected Class from other Lenders of such Class in each case so that the Lenders participate in each Borrowing of such Class pro rata on the basis of their respective Revolving Commitments of such Class (after giving effect to any increase in the Revolving Commitments pursuant to this Section 2.21) and the Borrowers, to implement to terms amounts payable under Section 2.18 as a result of the Incremental Term Loanactions required to be taken under this Section 2.21 shall be paid in full by the applicable Borrower or Borrowers; and
(iii) If any such Additional Lender is a Foreign Lender, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in Additional Lender shall deliver the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanforms required by Section 2.17.
Appears in 1 contract
Sources: Credit Agreement (IntercontinentalExchange Group, Inc.)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the The Borrowers may from time to timetime add one or more tranches of term loans or increase outstanding tranches of term loans (each an “Incremental Term Facility”) and/or increase commitments under any Revolving Facility (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Company by an agreement in writing entered into by the Borrowers, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (and, for the avoidance of doubt, shall not require the consent of any other Lender) (each an “Incremental Facility Amendment”); provided that:
(a) the aggregate principal amount of all Incremental Facilities established under this Section 2.16 following the Fifth Amendment Effective Date shall not exceed the sum of:
(i) $150,000,000; plus
(ii) an unlimited amount so long as, in the case of this clause (ii), after giving effect to the relevant Incremental Facility on a Pro Forma Basis, the Consolidated Secured Leverage Ratio does not exceed 2.75:1.00 (assuming the full amount of such Incremental Facility is fully drawn and without “netting” the cash proceeds of such Incremental Facility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Company); provided that any Incremental Facility may be incurred under either sub-clauses (i) or sub-clause (ii) of this clause (a) as selected by the Company in its sole discretion and if any Incremental Facility is intended to be incurred in part under both sub-clauses (i) and (ii) then the permissibility of the portion of such Incremental Facility to be incurred under sub-clause (ii) shall first be determined without giving effect to the portion of such Incremental Facility incurred under sub-clause (i), but giving full Pro Forma Effect to the use of proceeds of the entire amount of such Incremental Facility;
(b) no Event of Default shall exist on the effective date of any Incremental Facility or would exist after giving effect to any Incremental Facility;
(c) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion; CHAR1\1847295v5
(d) each Incremental Facility shall be in an aggregate principal amount of at least $10,000,000 and each Incremental Facility Commitment shall be in a minimum principal amount of at least $1,000,000, in the case of an Incremental Revolving Increase, and at least $1,000,000 in the case of an Incremental Term Facility (or, in each case, such lesser amounts as the Administrative Agent may agree);
(e) each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(f) the Borrowers shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such increase signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Company, certifying that, before and after giving effect to such increase, (1) the representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) as of such earlier date, (2) no Default or Event of Default exists and (3) such Incremental Facility or Incremental Facilities have been incurred in compliance with this Agreement;
(ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility; and
(iii) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility;
(g) the Administrative Agent shall have received documentation from each Person providing a new commitment in respect of such requested Incremental Facility or Incremental Facilities (each such commitment, an “Incremental Facility Commitment”) evidencing its Incremental Facility Commitment and its obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(h) in the case of an Incremental Term Facility, the Administrative Agent shall have determined in its reasonable discretion whether such Incremental Term Facility consists of a tranche A term loan (an “Incremental Tranche A Term LoanFacility”) or a tranche B term loan (an “Incremental Tranche B Term Facility”);
(i) in the case of an aggregate amount Incremental Term Facility that is an Incremental Tranche A Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for all such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Revolving Loans and (2) the final maturity date of any then outstanding Incremental Tranche A Term Loan; and CHAR1\1847295v5
(B) the Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of any then outstanding Incremental Tranche A Term Loan;
(ii) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(iii) such Incremental Term Facility shall share ratably in any prepayments of the other Term Facilities pursuant to exceed $150,000,000Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for the then outstanding Term Facilities); providedand
(iv) if such Incremental Term Facility consists of one or more new tranches of term loans, howeverthe other terms thereof, if not consistent with the terms applicable to the Term B Loan, shall be reasonably acceptable to the Administrative Agent;
(j) in the case of an Incremental Term Facility that is an Incremental Tranche B Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Term B Loan and (2) the final maturity date of any then outstanding Incremental Tranche B Term Loan;
(B) the Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term B Loan or any then outstanding Incremental Tranche B Term Loan;
(C) if the All-In-Yield on such Incremental Term Facility exceeds the All-In-Yield on the Term B Loan or any then outstanding Incremental Tranche B Term Facility by more than ½ of one percent (1.00%) per annum, then the Applicable Rate or fees payable by the Borrowers with respect to the Term B Loan and each then outstanding Incremental Tranche B Term Facility shall on the effective date of such Incremental Term Facility be increased to the extent necessary to cause the All-In-Yield on the Term B Loan and each then outstanding Incremental Tranche B Term Facility to be not more than ½ of one percent (1.00%) less than the All-In-Yield on such Incremental Term Facility (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Borrowers); provided that, notwithstanding anything to the contrary in the foregoing clause (C), the provisions of this clause (C) shall not apply to any Incremental Tranche B Term Facility established after the first twelve (12) months following the Closing Date in relation to the Term B Loan or any then existing Incremental Tranche B Term Facility;
(ii) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(iii) such Incremental Term Facility shall share ratably in any prepayments of the Term B Loan and any then outstanding Incremental Tranche B Term Loan pursuant to Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Facilities) and shall have ratable voting rights as the other Term CHAR1\1847295v5 Facilities (or otherwise provide for more favorable voting rights for the then outstanding Term Facilities); and
(iv) if such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the terms applicable to the Term B Loan, shall be reasonably acceptable to the Administrative Agent;
(k) in the case of any Incremental Revolving Increase with respect to the Revolving Facility:
(i) such Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins, provided that, subject to clause (ii) below, such Incremental Revolving Increase may be issued with a utilization fee and/or additional unused fee payable solely to the Lenders under such Incremental Revolving Increase) applicable to the Revolving Facility; and
(ii) the existing Lenders under the Revolving Facility shall on the effective date of such Incremental Revolving Increase make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility to the Lenders providing such Incremental Revolving Increase and the Administrative Agent may make such adjustments to the Register as are necessary so that, after giving effect to such assignments and adjustments, each Lender under the Revolving Facility (including the Lenders providing such Incremental Revolving Increase) will hold revolving loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility equal to its pro rata share thereof; and
(l) the Company shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis to (without “netting” the cash proceeds of such Incremental Term LoanFacility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Company and assuming, in the case of any Incremental Facility that consists of an Incremental Revolving Increase, the full amount of such Incremental Facility is fully drawn) the Loan Parties would be in compliance with Pro Forma Compliance; provided, further, that the financial covenants conditions set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) foregoing proviso shall be treated substantially subject to the same as (and provisions of Section 1.10 in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount case of any Incremental Term Loan hereunder Facility used to finance a Limited Condition Acquisition. The Incremental Facility Commitments and credit extensions thereunder shall constitute Commitments and Credit Extensions under, and shall be in a minimum amount of $10,000,000 (entitled to all the benefits afforded by, this Agreement and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loanother Loan Documents, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) and shall, in connection therewithwithout limiting the foregoing, deliver to benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents. The Lenders hereby authorize the Administrative Agent a new commitment agreement in form to enter into, and substance satisfactory the Lenders agree that this Agreement and the other Loan Documents shall be amended by, such Incremental Facility Amendments to the extent (and only to the extent) the Administrative Agent and its counsel.
(b) If deems necessary in order to establish Incremental Facilities on terms consistent with and/or to effect the Commitments are increased provisions of this Section 2.16. This Section 2.16 shall supersede any provisions in accordance with this Section, Section 10.01 to the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loancontrary. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver each Lender as to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate effectiveness of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Facility Amendment.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Sources: Credit Agreement (Celestica Inc)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)at its option, the Borrowers may at any time or from time to timetime prior to the Termination Date, request increase the Total Commitments (each such increase, a new term loan (an “Commitment Increase” and the additional Commitments pursuant to each such Commitment Increase, “Incremental Term LoanCommitments”) in to an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000225,000,000 (with each Commitment Increase being in a minimum aggregate principal amount of $5,000,000 (the “Minimum Increase Amount”) or a whole multiple of $1,000,000 in excess of the Minimum Increase Amount) by requesting that existing Lenders or new lenders commit to any such increase; provided that: (i) no Lender shall be required to commit to any such increase; (ii) no such increase shall become effective unless at the time thereof and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing, (B) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects, provided, howeverthat, that to the Borrowers extent any such representation and warranty is already qualified by materiality or reference to Material Adverse Effect, such representation shall be true and correct in all respects, and (C) the Administrative Agent shall have received a certificate from the Borrower to the effect of (A) and (B) of clause (ii); and (iii) no new lender shall become a Lender pursuant to this Section 2.21 unless such lender is an Eligible Assignee and the Administrative Agent shall have given its prior written consent, which consent shall not be unreasonably withheld. The Borrower shall be entitled to pay upfront or other fees to such lenders who extend credit pursuant to this Section 2.21 as the Borrower and such lenders may agree. Each Commitment Increase shall become effective on the date (each such date, an “Increased Facility Closing Date”) specified in an activation notice delivered to the Administrative Agent no less than ten (10) Business Days prior to the effective date of such notice specifying the amount of the increase and the effective date thereof. Each new lender that provides any part of any such increase in the Commitments (a Pro Forma Compliance Certificate demonstrating that“New Lender”) shall execute a New Lender Supplement (each, upon giving effect on a Pro Forma Basis “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such New Lender shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement to such Incremental Term Loanextent. On any Increased Facility Closing Date, subject to the Loan Parties would be in compliance with satisfaction of the financial covenants set forth in Section 6.10; foregoing terms and provided further that any Term Loan conditions, (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 Lenders shall be deemed to refer assign to the most recent financial statements furnished pursuant to subsections each Person with Incremental Commitments (aeach, an “Incremental Lender”) and (b), respectively, each of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation the Incremental Lenders shall be deemed to purchase from each Loan Party pursuant to which each of the Lenders, at the principal amount thereof, such Loan Party ratifies this Agreement and interests in the other Loan Documents and acknowledges and reaffirms Revolving Loans outstanding on such Increased Facility Closing Date as shall be necessary in order that, after giving effect to all such increaseassignments and purchases, it is bound the Revolving Loans will be held by all terms of this Agreement and the other Loan Documents; Lenders (3including Incremental Lenders) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then ratably in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment accordance with their respective Commitments after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor addition of such Lender if so requested by such Lender; Incremental Commitments to the Commitments, (ii) each Incremental Commitment shall be deemed for all purposes a Commitment and each Revolving Loan made thereunder (an “Incremental Loan”) shall be deemed for all purposes a Revolving Loan and (5iii) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such each Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided Lender that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each is a New Lender shall execute and deliver to Administrative Agent any other documentation as become a Lender in accordance with the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loanimmediately preceding sentence. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement terms and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, to implement to terms provisions of the Incremental Term Loan, including amortization, pricing, maturity, Loans and such other technical amendments as may Incremental Commitments shall be necessary or appropriate in substantially identical to the reasonable opinion terms and conditions of the Administrative Agent, the Lenders Revolving Loans and the Borrowers in connection with the establishment of such Incremental Term LoanCommitments.
Appears in 1 contract
Sources: Credit Agreement (M I Homes Inc)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower at its option may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to time, seek to (i) request a new one or more term loan loans (each an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) in and/or (ii) increase the aggregate Revolving Loan Commitments (each such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loans, the “Incremental Facilities”) by up to an aggregate amount for all of $1,000,000,000800,000,000 upon at least three (3) Business Days’ prior written notice to the Administrative Agent, which notice shall specify the amount of any such Incremental Term Loans Facility (which shall be in a minimum amount of $25,000,000 and in multiples of $5,000,000 in excess thereof (or such lesser amount and/or increments to which the Administrative Agent may agree)) and shall certify that no Potential Event of Default or Event of Default has occurred and is continuing. After delivery of such notice, the Borrower, in consultation with the Administrative Agent, may offer the Incremental Facility (which may be declined by any Lender in its sole discretion and any Lender which does not respond to exceed $150,000,000; provideda request to extend an Incremental Facility shall be deemed to have declined to do so) on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or to other lenders or entities reasonably acceptable to the Administrative Agent, however, that the Borrowers Issuing BanksLenders (in the case of an Incremental Revolving Commitment) and the Borrower. No Incremental Facility shall become effective until the existing or new Lenders extending such Incremental Facility and the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement document in form and substance reasonably satisfactory to the Administrative Agent and the Borrower pursuant to which (i) any such existing Lender providing or increasing a commitment in respect of such Incremental Facility agrees to the amount of its counsel.
portion of the Incremental Facility, (bii) If any such new lender providing a commitment in respect of such Incremental Facility agrees to its portion of the Commitments are increased in accordance with this SectionIncremental Facility and agrees to assume and accept the obligations and rights of a Revolving Lender and/or Term Loan Lender hereunder, as applicable, (iii) the Administrative Agent and the Borrowers shall determine Borrower accepts such Incremental Facility, (iv) the effective date of any Incremental Facility is specified by the Borrower and the lenders providing or increasing their respective commitments in respect of such Incremental Facility and (v) the “Borrower certifies that on such date the conditions for a new Loan set forth in subsection 4.024.2 are satisfied. The terms of any Incremental Term Loan Effective Date”) and shall, taken as a whole, be substantially identical to, or less favorable to the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of lenders making such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) abovethan, the Borrowers shall deliver terms applicable to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increaseLoans hereunder, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, except that (A) the representations and warranties contained in Article V Borrower and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies Administrative Agent may amend this Agreement and the other Loan Documents to implement such mechanical and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement conforming changes as the Borrower and the other Loan Documents; Administrative Agent deem appropriate, (3B) if the maturity date of any Incremental Term Loan is being provided by an existing Lendershall be no earlier than the Term Loan Maturity Date, (C) the interest rate margins and other economic terms, amortization schedule, prepayment terms, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect currency applicable to such increase; (4) if the any Incremental Term Loan is being provided shall be determined by a new Lender, a Note in favor of such Lender if so requested by such Lender; the Borrower and the lenders thereunder and (5D) payment the foregoing limitation upon the terms of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan shall not apply to covenants or other provisions applicable only to have it periods after the latest Term Loan Maturity Date. Each Incremental Term Loan shall be guaranteed made pursuant to an amendment, restatement or amendment and secured by the other Loan Documents restatement (the an “Incremental Term Loan Amendment”)) of this Agreement and, and all Lenders not providing as appropriate, the other Loan Documents, executed by the Borrower, each lender under such Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. AdditionallyAdministrative Agent, in each case without the Borrowers, Guarantors and each Lender shall execute and deliver need to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without obtain the consent of any other Lender, Person. Each Incremental Term Loan Amendment may effect such amendments to this Agreement and the other Loan CHAR1\1732468v1CHAR1\1735441v5 Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders Agent and the BorrowersBorrower, to implement give effect to terms the provisions of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of this subsection 2.10. The Lenders hereby irrevocably authorize the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of Agent to enter into such Incremental Term Loan Amendments. Upon the effectiveness of any Incremental Revolving Commitment pursuant hereto, (i) each Revolving Lender (new or existing) shall be deemed to have accepted an assignment at par from the existing Revolving Lenders, and the existing Revolving Lenders shall be deemed to have made an assignment at par to each new or existing Revolving Lender accepting a new or increased Revolving Loan Commitment, of an interest in each then outstanding Revolving Loan (in each case, on the terms and conditions set forth in the Assignment and AssumptionAgreement) and (ii) the credit exposure to the Borrower hereunder in respect of Swing Line Loans and Letters of Credit of the existing and new Revolving Lenders shall be automatically adjusted such that, after giving effect to such assignments and adjustments, all credit exposure to the Borrower hereunder is held ratably by the Revolving Lenders in proportion to their respective Revolving Loan Commitments. Assignments pursuant to the preceding sentence shall be made in exchange for, and substantially contemporaneously with the payment to the assigning Revolving Lenders of, the principal amount assigned plus accrued and unpaid interest and commitment and Letter of Credit fees relating to such principal amount. Payments received by assigning Revolving Lenders pursuant to this subsection 2.10 in respect of the principal amount of any Eurodollar Rate Loan shall, for purposes of subsection 2.6D, be deemed prepayments of such Loan. Any Incremental Facility pursuant to this subsection 2.10 shall be subject to receipt by the Administrative Agent from the Borrower of such supplemental opinions, resolutions, certificates and other documents as the Administrative Agent may reasonably request. Notwithstanding anything in subsection 10.6 or elsewhere herein to the contrary, no consent of any Lender (other than the Lenders agreeing to new or increased commitments) shall be required for any Incremental Facility provided or Loan made pursuant to this subsection 2.10. This subsection 2.10 shall supersede any provisions in subsections 10.1B, 10.5 or 10.6 to the contrary. In no event shall any Incremental Facility established pursuant to this subsection 2.10 result in the sum of the Total Utilization of Revolving Loan Commitments plus the aggregate amount of undrawn Revolving Loan Commitments plus the aggregate amount of all Term Loans and Incremental Term Loans made hereunder exceed $3,720,000,000.
Appears in 1 contract
Sources: Credit Agreement (Mosaic Co)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)At any time the Borrower may, upon notice from on the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to timeterms set forth below, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000that the Aggregate Commitments hereunder be increased; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) the Aggregate Commitments hereunder at no time shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and exceed $750,000,000, (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of each such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder request shall be in a minimum amount of at least $10,000,000 (and in integral multiples increments of $10,000,000 5,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept (iii) an increase in its the Aggregate Commitments hereunder may only be made at a time when no Default or Event of Default shall have occurred and be continuing, and (iv) no Lender’s Commitment pursuant to shall be increased under this Section 2.12 unless it specifically consents to 2.16 without its consent. In the event of such a requested increase in writing. Any the Aggregate Commitment, any financial institution which the Borrower invites to become a Lender or Eligible Assignee agreeing to increase its Commitment or provide may set the amount of its Commitment at a new Commitment pursuant level agreed to this Section 2.12 by the Borrower; provided that if such financial institution is not an existing Lender, (an “Incremental Term Loan Commitment”x) shall, in connection therewith, deliver to the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such financial institution’s becoming a new commitment agreement Lender if such consent would be required under Section 10.06(b) for an assignment of Revolving Loans to such Person and (y) such financial institution shall not be any Person prohibited from taking an assignment of Revolving Loans pursuant to Section 10.06(b)(v). In the event that the Borrower and one or more of the Lenders (or other financial institutions) shall agree upon such an increase in form and substance satisfactory to the Administrative Agent and its counsel.
Aggregate Commitments (bi) If the Commitments are increased in accordance with this SectionBorrower, the Administrative Agent and each Lender or other financial institution increasing its Commitment or extending a new Commitment shall enter into an amendment to this Agreement setting forth the Borrowers amounts of the Commitments, as so increased, providing that the financial institutions extending new Commitments shall determine be Lenders for all purposes under this Agreement, and setting forth such additional provisions as the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify consider reasonably appropriate to effectuate the Administrative Borrower and the Lenders provisions of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, this Section 2.16 and (ii) certifying thatthe Borrower shall furnish, before if requested, a new Note to each financial institution that is extending a new Commitment or increasing its Commitment. No such amendment shall require the approval or consent of any Lender whose Commitment is not being increased. Upon the execution and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as delivery of such earlier dateamendment as provided above, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor upon satisfaction of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if other conditions as the Incremental Term Loan is being provided by a Administrative Agent may reasonably specify upon the request of the financial institutions that are extending new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase Commitments (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without administering the consent reallocation of any other Lenderoutstanding Revolving Loans ratably among the Lenders after giving effect to each such increase in the Aggregate Commitments, may effect such amendments to and the delivery of certificates, evidence of corporate authority and legal opinions on behalf of the Borrower), this Agreement and the other Loan Documents as may shall be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, deemed to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanamended accordingly.
Appears in 1 contract
Sources: Revolving Credit Agreement (TJX Companies Inc /De/)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)at its option, the Borrowers may at any time or from time to timetime prior to the Termination Date, request increase the Total Commitments (each such increase, a new term loan (an “Commitment Increase” and the additional Commitments pursuant to each such Commitment Increase, “Incremental Term LoanCommitments”) in to an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000250,000,000 (with each Commitment Increase being in a minimum aggregate principal amount of $5,000,000 (the “Minimum Increase Amount”) or a whole multiple of $1,000,000 in excess of the Minimum Increase Amount) by requesting that existing Lenders or new lenders commit to any such increase; provided that: (i) no Lender shall be required to commit to any such increase; (ii) no such increase shall become effective unless at the time thereof and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing, (B) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects, provided, howeverthat, that to the Borrowers extent any such representation and warranty is already qualified by materiality or reference to Material Adverse Effect, such representation shall be true and correct in all respects and (C) the Administrative Agent shall have received a certificate from the Borrower to the effect of (A) and (B) of this clause (ii); and (iii) no new lender shall become a Lender pursuant to this Section 2.21 unless such lender is an Eligible Assignee and the Administrative Agent shall have given its prior written consent, which consent shall not be unreasonably withheld. The Borrower shall be entitled to pay upfront or other fees to such lenders who extend credit pursuant to this Section 2.21 as the Borrower and such lenders may agree. Each Commitment Increase shall become effective on the date (each such date, an “Increased Facility Closing Date”) specified in an activation notice delivered to the Administrative Agent no less than ten (10) Business Days prior to the effective date of such notice specifying the amount of the increase and the effective date thereof. Each new lender that provides any part of any such increase in the Commitments (a Pro Forma Compliance Certificate demonstrating that“New Lender”) shall execute a New Lender Supplement (each, upon giving effect on a Pro Forma Basis “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such New Lender shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement to such Incremental Term Loanextent. On any Increased Facility Closing Date, subject to the Loan Parties would be in compliance with satisfaction of the financial covenants set forth in Section 6.10; foregoing terms and provided further that any Term Loan conditions, (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 Lenders shall be deemed to refer assign to the most recent financial statements furnished pursuant to subsections each Person with Incremental Commitments (aeach, an “Incremental Lender”) and (b), respectively, each of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation the Incremental Lenders shall be deemed to purchase from each Loan Party pursuant to which each of the Lenders, at the principal amount thereof, such Loan Party ratifies this Agreement and interests in the other Loan Documents and acknowledges and reaffirms Revolving Loans outstanding on such Increased Facility Closing Date as shall be necessary in order that, after giving effect to all such increaseassignments and purchases, it is bound the Revolving Loans will be held by all terms of this Agreement and the other Loan Documents; Lenders (3including Incremental Lenders) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then ratably in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment accordance with their respective Commitments after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor addition of such Lender if so requested by such Lender; Incremental Commitments to the Commitments, (ii) each Incremental Commitment shall be deemed for all purposes a Commitment and each Revolving Loan made thereunder (an “Incremental Loan”) shall be deemed for all purposes a Revolving Loan and (5iii) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such each Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided Lender that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each is a New Lender shall execute and deliver to Administrative Agent any other documentation as become a Lender in accordance with the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loanimmediately preceding sentence. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement terms and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers, to implement to terms provisions of the Incremental Term Loan, including amortization, pricing, maturity, Loans and such other technical amendments as may Incremental Commitments shall be necessary or appropriate in substantially identical to the reasonable opinion terms and conditions of the Administrative Agent, the Lenders Revolving Loans and the Borrowers in connection with the establishment of such Incremental Term LoanCommitments.
Appears in 1 contract
Sources: Credit Agreement (AV Homes, Inc.)
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)The Borrower may, upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)at its option, the Borrowers may at any time or from time to timetime prior to the Termination Date, request a new term loan increase the Total Commitments by up to $100,000,000 (an the “Incremental Term LoanCommitment Increase”) in to an aggregate principal amount for all such Incremental Term Loans not to exceed $150,000,000600,000,000 by requesting the existing Lenders or new lenders to commit to any such increase; provided that: (i) no Lender shall be required to commit to any such increase; (ii) no such increase shall become effective unless at the time thereof and after giving effect thereto (A) no Default or Event of Default shall have occurred and be continuing, (B) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects, provided, howeverthat, that to the Borrowers extent any such representation and warranty is already qualified by materiality or reference to Material Adverse Effect, such representation shall be true and correct in all respects, and (C) Administrative Agent shall have delivered received a certificate from Borrower to the effect of (A) and (B) of clause (ii); and (iii) no new lender shall become a Lender pursuant to this Section 2.21 unless such lender is an Eligible Assignee and Administrative Agent a Pro Forma Compliance Certificate demonstrating thatshall have given its prior written consent, upon giving effect which consent shall not be unreasonably withheld.
(i) Section 3.1(a) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
(a) Subject to the terms and conditions hereof, each Issuing Lender, in reliance on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with agreements of the financial covenants other Lenders set forth in Section 6.103.4(a), agrees to issue letters of credit (“Letters of Credit”), not to exceed in the aggregate such Issuing Lender’s Letter of Credit Commitment, for the account of the Borrower (and on behalf of the Borrower or any of its Subsidiaries or joint ventures) on any Business Day during the Commitment Period in such customary form as may be approved from time to time by the respective Issuing Lender; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and Issuing Lender shall have the same benefits no obligation to issue any Letter of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms thatCredit if, after giving effect to such increaseissuance, it (i) (A) the L/C Obligations would exceed the L/C Commitment, or (B) such Issuing Lender’s Percentage Interest of L/C Obligations when aggregated with such Issuing Lender’s Percentage Interest of outstanding Revolving Loans and such Issuing Lender’s Percentage Interest in Swingline Loans would exceed such Issuing Lender’s Commitment, (ii) the aggregate amount of the Available Commitments would be less than zero, or (iii) the Borrowing Base Availability would be less than zero. 6 la-1290464 The Borrower may, at any time and from time to time, reduce the Letter of Credit Commitment of any Issuing Lender with the consent of such Issuing Lender; provided that the Borrower shall not reduce the Letter of Credit Commitment of any Issuing Lender if, after giving effect of such reduction, the conditions set forth in clauses (i)- (iii) above shall not be satisfied. The Borrower may, at any time and from time to time, reallocate the Letter of Credit Commitment by reducing the Letter of Credit Commitment of one or more Issuing Lenders and increasing the Letter of Credit Commitment of one or more other Issuing Lenders, provided that (a) each affected Issuing Lender consents to such reallocation, (b) Borrower provides written notice to the Administrative Agent and (c) the aggregate of the total Letter of Credit Commitment does not increase or decrease. Each Letter of Credit shall (A) be denominated in Dollars and (B) expire no later than the earlier of (x) the second anniversary of its date of issuance and (y) the date that is bound by all 364 days after the Termination Date, provided (I) that any Letter of Credit with up to a two-year term may provide for the renewal thereof for up to an additional two-year period (which shall in no event extend beyond the date referred to in clause (y) above) and (II) at least 60 days prior to the Termination Date, Borrower shall, to the extent of the balance, replace outstanding Letters of Credit and/or deposit an amount equal to the Minimum Collateral Amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of a Subsidiary or joint venture inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiary or joint venture. The letters of credit issued under the Original Credit Agreement set forth on Schedule 3.1 (collectively, the “Existing LCs”) shall be continued from the Original Credit Agreement under this Agreement and from and after the other Loan Documents; (3) if date hereof, notwithstanding any language to the Incremental Term Loan is being provided by an existing Lendercontrary contained in any of the Existing LCs, the Existing LCs shall be deemed Letters of Credit issued under this Agreement, and Borrower shall execute such acknowledgments and agreements as Administrative Agent my reasonably request to evidence the foregoing. Each Lender is then from time to time party hereto, including each Lender which was not a lender under the Original Credit Agreement, each as an L/C Participant hereunder, hereby irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender under the Existing LCs, on the terms and conditions set forth in possession of a NoteSection 3.4 below, then a revised Note for such L/C Participant’s own account and risk an undivided interest equal to such L/C Participant’s Percentage Interest in favor of such Lender reflecting such the Issuing Lender’s Commitment after giving effect to such increase; (4) if obligations and rights under and in respect of each Existing LCs and the Incremental Term Loan is being provided amount of each draft paid by a new Lender, a Note in favor of such the Issuing Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)thereunder.
(cj) This Section shall supersede any provisions in Sections 2.10 or 10.01 to 10.2 of the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Credit Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured is hereby amended by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of modifying the Administrative Agent’s address for notices to read as follows: JPMorgan Chase Bank, the Lenders and the BorrowersN.A. Wholesale Loan Operations Floor 03, to implement to terms Ops 2, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Newark, Delaware 19713 Telephone: _____________________ Email: _________________________ 7 la-1290464 With a copy to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq. Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Email: ▇▇▇▇▇▇@▇▇▇▇.▇▇▇ (k)Section 10.10 of the Incremental Term Loan, including amortization, pricing, maturity, Credit Agreement is hereby amended and such other technical amendments restated in its entirety to read as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.follows: 10.10
Appears in 1 contract
Sources: Credit Agreement
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom)After the Restatement Date, the Borrower may, upon at least thirty (30) days’ notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify provide a copy of such notice to the Lenders), propose to increase the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) amount of the Commitments in an aggregate minimum amount of $25,000,000 and an aggregate maximum amount for all such Incremental Term Loans increases pursuant to this Section 2.13 not to exceed $150,000,000; provided400,000,000 (the amount of any such increase, however, the “Increased Commitments”) provided that the Borrowers shall have delivered to (i) the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have received a certificate signed by a Designated Officer dated as of the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms date of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 increase (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan CommitmentIncrease Effective Date”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
stating that (b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (Ax) 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 such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.122.13, the representations and warranties contained in Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b) of Section 5.01 6.01 and the representations and warranties contained in Section 5.06 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections subsection (ab) of Section 6.01 and (b), respectively, of Section 6.01, and (By) no Default exists; has occurred and is continuing and (2ii)(x) a statement upon the reasonable request of reaffirmation from each Loan Party pursuant any Lender or Additional Lender providing the Increased Commitments, made at least five days prior to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms thatIncrease Effective Date, after giving effect the Borrower shall have provided to such increaseLender or Additional Lender, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lenderas applicable, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new or Additional Lender, a Note in favor of such Lender if as applicable, shall be reasonably satisfied with, the documentation and other information so requested by such Lender; in connection with applicable “know your customer” and (5) payment of any applicable fee related to such increase (anti-money-laundering rules and regulations, including, without limitation, the Act, in each case at least two days prior to the Increase Effective Date and (y) at least two days prior to the Increase Effective Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, then the Borrower shall have delivered, to each Lender that so requests a Beneficial Ownership Certification.
(b) The Borrower may offer the Increased Commitments to: (i) any applicable arrangementLender party to this Agreement; provided, upfront and/or administrative feethat any Lender offered an Increased Commitment shall have no obligation to accept such Increased Commitment; or (ii) any other Eligible Assignee acceptable to the Administrative Agent and which agrees to become a party to this Agreement (an “Additional Lender”); provided that the Commitment of each such Lender or Additional Lender equals or exceeds $10,000,000. The sum of (1) the aggregate amount of Commitment increases of any existing Lenders pursuant to this subsection (b) plus (2) the aggregate amount of any Commitments of Additional Lenders shall not in the aggregate exceed the total amount of the Increased Commitments.
(c) This An increase in the aggregate amount of the Commitments pursuant to this Section 2.13 shall supersede any provisions become effective upon the receipt by the Administrative Agent of an agreement in Sections 2.10 or 10.01 form and substance satisfactory to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent signed by the Borrower, by each Additional Lender and by each other Lender whose Commitment is to be increased, setting forth the new Commitments of such Lenders shall enter into an amendment and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the other Loan Documents as necessary terms and provisions hereof, together with such evidence of appropriate corporate authorization on the part of the Borrower with respect to evidence the Increased Commitments and such Incremental Term Loan or opinions of counsel for the Borrower with respect to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation Increased Commitments as the Administrative Agent shall may reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanrequest.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists So long as (x) no Default (and no Default exists or would result therefrom), upon notice from the Administrative Borrower exist after giving effect to the Administrative Agent (which shall promptly notify making of the Lenders), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not or Incremental Revolving Loans referred to exceed $150,000,000; provided, however, that below and the Borrowers shall have delivered use of proceeds therefrom and (y) after giving effect to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such making of the Incremental Term LoanLoans or Incremental Revolving Loans referred to below and the use of proceeds therefrom, the Loan Parties Borrower would be in compliance with the Financial Covenants on a pro forma basis on such date and for the most recent fiscal quarter for which financial covenants set forth statements have been delivered in accordance with Section 6.105.01 after giving effect on a pro forma basis to any related adjustment events, including any acquisitions or dispositions after the beginning of the relevant calculation period but prior to or simultaneous with the borrowing of such Incremental Term Loans or Incremental Revolving Loans, then upon written notice to the Administrative Agent, Borrower may from time to time request (i) additional term loans (the “Incremental Term Loans” and the related commitments, the “Incremental Term Loan Commitments”) in an aggregate principal amount not to exceed $400,000,000; and provided further that any such increase shall be in an aggregate amount of $50,000,000 or any whole multiple of $1,000,000 in excess thereof, and (ii) additional revolving loans (the “Incremental Revolving Loans” and the related commitments, the “Incremental Revolving Loan Commitments”) in an aggregate principal amount not to exceed $100,000,000; provided that any such increase shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof; provided, further, that any existing Lender approached to provide all or a portion of the Incremental Term Loan Loans and related commitments or Incremental Revolving Loans and related commitments may elect or decline, in its sole discretion, to provide such loans and commitments. The Incremental Term Loans (iA) shall rank pari passu in right of payment and right of security in respect of the Collateral with the existing Term B Loans and (B) other than amortization, pricing and maturity date, shall have the same benefits terms as Term B Loans existing immediately prior to the effectiveness of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of amendment creating such Incremental Term LoanLoans; provided that (x) if the interest rate spreads relating to such new Incremental Term Loans exceed the Applicable Rate at any pricing level for the Term B Loans (including any upfront fees or original issue discount payable to the Lenders providing such Incremental Term Loans), then the Applicable Rate for the Term B Loans shall be adjusted to be equal to such interest rate spreads, (y) the Incremental Term Loans shall not have a final maturity date earlier than the Term B Loan Maturity Date, and (z) the Incremental Term Loans shall not have a Weighted Average Life to Maturity that is shorter than the then-remaining Weighted Average Life to Maturity of the Term B Loans. The aggregate amount of any Any Term B Lender or additional bank or financial institution electing to make available an Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan CommitmentLender”) shallshall become a Lender or make its Incremental Term Loan Commitment available, as the case may be, under this Agreement, pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement giving effect to the modifications permitted by this Section 2.21 and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Incremental Term Lender and the Administrative Agent, and to any other documentation, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form each case on terms and substance documentation satisfactory to the Administrative Agent and the Lead Arranger. The Incremental Revolving Loans (A) shall rank pari passu in right of payment and right of security in respect of the Collateral with the Revolving Loans and (B) other than pricing and maturity date, shall have the same terms as Revolving Loans existing immediately prior to the effectiveness of the amendment creating such Incremental Revolving Loans; provided that (x) if the interest rate spreads and unused commitment fees relating to such new Incremental Revolving Loans exceed the Applicable Rate and unused commitment fees at any pricing level for the Revolving Loans (including any upfront fees or original issue discount payable to the Lenders providing such Incremental Revolving Loans), then the Applicable Rate and unused commitment fees for the Revolving Loans shall be adjusted to be equal to such interest rate spreads, and (y) the Incremental Revolving Loans shall not have a final maturity date earlier than the applicable maturity date of the Revolving Loans. Any Revolving Lender or additional bank or financial institution electing to make available an Incremental Revolving Commitment (an “Incremental Revolving Lender”) shall become a Lender or make its counsel.
(b) If Incremental Revolving Commitment available, as the Commitments are increased case may be, under this Agreement, pursuant to an Incremental Facility Amendment to this Agreement giving effect to the modifications permitted by this Section 2.21 and, as appropriate, the other Loan Documents, executed by the Loan Parties, each Incremental Revolving Lender and the Administrative Agent, and to any other documentation, in accordance with this Section, each case on terms and documentation satisfactory to the Administrative Agent and the Borrowers shall determine the effective date (the “Lead Arranger. An Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan AmendmentFacility Amendment may, without the consent of any other LenderLenders, may 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, to effect the Lenders and the Borrowers, to implement to terms provisions of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanthis Section 2.21.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon Upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers DeVry may from time to timetime (but not more than twice), request an increase in the Aggregate Commitments by an amount (for all such requests) not exceeding $150,000,000; by adding to this Agreement one or more other lenders (which may include any existing Lender, with the consent of such Lender in its sole discretion) (each such bank, a new term loan (an “Incremental Term LoanSupplemental Lender”) with the approval of (x) the Administrative Agent (which approval shall not be unreasonably withheld or delayed); provided that no consent of the Administrative Agent will be required in the case of any such Supplemental Lender that is a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender and (y) the L/C Issuer (which approval shall not be unreasonably withheld or delayed), provided that (i) each Supplemental Lender shall have entered into an agreement pursuant to which such Supplemental Lender shall undertake a Commitment (or, if such Supplemental Lender is an existing Lender, pursuant to which its Commitment shall be increased), (ii) such Commitment of any Supplemental Lender that is not an existing Lender shall be in an amount of at least $15,000,000, (iii) such Commitment (together with the increased Commitment(s) of all other Supplemental Lenders being provided at such time) shall be in an aggregate amount for all such Incremental Term Loans not to exceed of at least $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be 15,000,000 or any whole multiple of $1,000,000 in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral excess thereof and (ii) no Default shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counselthen exist.
(b) If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers DeVry shall determine the effective date (the “Incremental Term Loan Increase Effective Date”) and the final allocation of such Incremental Term Loan). The Administrative Agent shall promptly notify the Administrative Borrower DeVry and the Lenders of the final amount and allocation of such Incremental Term Loan increase and the Incremental Term Loan Increase Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocationDate. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers DeVry shall deliver to the Administrative Agent each of the following following, in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party , dated as of the Incremental Term Loan such Increase Effective Date (Date, and in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party :
(i) a certificate signed by the Secretary or Assistant Secretary of DeVry certifying and attaching the resolutions adopted by such Loan Party DeVry approving or consenting to such increase, and ,
(ii) a certificate signed by a Responsible Officer of DeVry certifying that, before and after giving effect to such Incremental Term Loanincrease, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct on and as of the Increase Effective Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.122.14, the representations and warranties contained in subsections (aSection 5.5(a) and (b) of Section 5.01 hereof shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (aSection 6.1(a) and (b) hereof), respectively, of Section 6.01, and (B) no Default exists; ,
(2iii) a statement of reaffirmation from an acknowledgment signed by each other Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect consenting to such increase, it is bound by all terms of this Agreement increase and reaffirming its obligations under the other Loan Documents; and
(3iv) if to the Incremental Term Loan extent requested by the Administrative Agent, such opinions of counsel (including opinions of counsel for its Non-U.S. Subsidiaries) reaffirming the opinions furnished pursuant to Sections 4.1 and 6.14 as applied to the increase in Commitments pursuant to this Section and confirming that the Collateral secures the Obligations as so increased. On the Increase Effective Date, the Administrative Agent shall revise Schedule 2.1 to reflect the increase in Commitments and the allocation thereof, it being understood that (i) each Lender’s Pro Rata Share shall be revised to reflect a fraction (expressed as a decimal, carried out to the ninth decimal place) the numerator of which is being provided by an existing Lender, and such Lender is then in possession the amount of a Note, then a revised Note in favor the aggregate Commitment of such Lender reflecting at such time and the denominator of which is the amount of the Aggregate Commitments of all Lenders, and (ii) the allocation of such Lender’s Commitment after giving effect shall be revised to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by reflect such Lender; ’s Pro Rata Share of the Aggregate Commitments as so revised. DeVry shall prepay any Revolving Loans outstanding on the Increase Effective Date (and (5pay any additional amounts required pursuant to Section 3.5) payment of to the extent necessary to keep all outstanding Revolving Loans ratable with any applicable fee related to such revised Pro Rata Shares arising from any nonratable increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)in the Commitments under this Section.
(c) This Section shall supersede any provisions in Sections 2.10 Section 2.13 or 10.01 11.1 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists no Default (and no Default would result therefrom), upon notice from At any time on or after the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders)Third Amendment Effective Date, the Borrowers may Borrower shall have the right to obtain additional Term Loans either from time to timeone or more of the Term Loan Lenders or other Persons, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental that the aggregate amount of Term Loans Loan Commitments in effect at any time shall not to exceed $150,000,0001,083,600,000; provided, however, provided that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing any such request for additional Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 30,000,000, (ii) the Borrower may make a maximum of three such requests, (iii) the Administrative Agent has approved each such new Term Loan Lender, such approval not to be unreasonably withheld or delayed, (iv) the procedures described in Section 2.24(c) have been satisfied and (v) with respect to any increase prior to the Existing Term Loan Maturity Date, such additional Term Loans shall be on the same economic terms and conditions as the Extended Term Loans.
(b) At any time on or after the Existing Revolving Credit Termination Date, the Borrower shall have the right to increase the Revolving Credit Commitment by obtaining additional Revolving Credit Commitments, either from one or more of the Revolving Credit Lenders or other Persons, in integral multiples an aggregate amount such that the aggregate amount of Revolving Credit Commitments in effect at any time shall not exceed $150,000,000; provided that (i) any such request for an increase shall be in a minimum amount of $10,000,000 30,000,000, (ii) the Borrower may make a maximum of three such requests, (iii) the Administrative Agent has approved each such new Revolving Credit Lender, such approval not to be unreasonably withheld or delayed, and (iv) the procedures described in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept Section 2.24(c) have been satisfied.
(c) Any amendment hereto for an increase in its Commitment Term Loan Commitments or Revolving Credit Commitments pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 Sections 2.24(a) and (an “Incremental Term Loan Commitment”) shallb), in connection therewithrespectively, deliver to the Administrative Agent a new commitment agreement shall be in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(b) If shall only require the Commitments are increased in accordance with this Sectionwritten signatures of the Administrative Agent, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Lender(s) being added or increasing their Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocationCommitment and/or Revolving Credit Commitment. As a condition precedent to such an increase, in addition to any deliveries pursuant to subsection (ai) above, the Borrowers Borrower shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer an authorized officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loanincrease, (Ax) the representations and warranties contained in Article V Section 4 and the other Loan Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) date and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (By) no Default exists; or Event of Default shall have occurred and be continuing and (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3iii) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders Borrower shall deliver to the Administrative Agent customary legal opinions, in form and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturitysubstance, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of from counsel, reasonably satisfactory to the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Increase in Commitments. Subject to Section 8.18, the Company may request that the Combined Commitments hereunder be increased in an amount up to $15,000,000 in the aggregate (such that the Combined Commitments hereunder shall be an amount not in excess of $245,000,000) by offering such increase to one or more banks or other financial institutions (each such bank or financial institution being hereinafter referred to as an "Additional Bank") selected by the Company and acceptable to the Arranger and the Agent. Notwithstanding anything herein to the contrary, the Company may further request that the Combined Commitments hereunder be further increased by an additional $10,000,000 in the aggregate (such that the Combined Commitments hereunder shall be an amount not in excess of $255,000,000), so long as the Company obtains the prior consent of the Agent and each of the Banks. Such increase in the Commitments shall also be subject to the satisfaction of the following conditions: (a) Provided there exists no Default each such increase shall be at least $10,000,000 or such greater amount which is an integral multiple of $1,000,000; (and no Default would result therefrom), upon notice from b) the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed $150,000,000; provided, however, that the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount of any Incremental Term Loan hereunder shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept received an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to acknowledgment agreement providing for such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance satisfactory to it executed by the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this SectionCompany, the Administrative Agent Agent, and the Borrowers relevant Additional Bank, and (c) the Agent shall determine have received a Note duly executed by the effective date (Company in favor of the “Incremental Term Loan Effective Date”) and relevant Additional Bank. Upon the final allocation satisfaction of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders conditions, effective as of the final allocation date set forth above in such acknowledgment agreement, each such Additional Bank shall thereafter be a "Bank" party to this Agreement and shall be entitled to all rights, benefits and privileges afforded a Bank hereunder and subject to the obligations of such Incremental Term Loan and a Bank hereunder to the Incremental Term Loan Effective Date extent of its Commitment and Schedule 2.01 hereto shall be deemed amended to reflect such reflecting the increase and final allocationin the aggregate Commitments caused by the inclusion of the Commitment of the Additional Bank. As a condition precedent to Concurrently with the effectiveness of such increase, in addition each Additional Bank shall fund its percentage of the outstanding Loans and overdue reimbursement obligations with respect to any deliveries pursuant to subsection (a) aboveLetters of Credit, the Borrowers shall deliver if any, to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and so that after giving effect thereto each Bank, including the Additional Bank, holds a Pro Rata Share (in accordance with its Commitment percentage) of the outstanding Loans and credit risks with respect to such Incremental Term LoanLetters of Credit, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct Company shall pay to each Bank all amounts due under Section 4.04 hereof as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment result of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent prepayment of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term outstanding Offshore Rate Loan.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists Subject to the prior or concurrent occurrence of a Successful Syndication (as such term is defined in the Fee Letter), at any time after the Closing Date, provided that no Default (or Event of Default shall have occurred and no Default would result therefrom)be continuing, upon the Borrower may request an increase of the aggregate Commitments by notice from the Administrative Borrower thereof to the Administrative Agent in writing (which shall promptly notify the Lenderssuch notice, a "Commitment Increase Notice"), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for all such Incremental Term Loans not to exceed less than $150,000,000; provided, however, that the Borrowers shall have delivered to the 10,000,000. The Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, will provide the Loan Parties would be in compliance Lenders with the financial covenants set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms notice of such Incremental Term LoanCommitment Increase Notice. The aggregate amount of any Incremental Term Loan hereunder Any such Commitment Increase Notice shall be in a minimum amount form reasonably satisfactory to the Administrative Agent. The Borrower may, in its sole discretion, but with the consent of $10,000,000 the Administrative Agent as to any Person that is not at such time a Lender, offer to any existing Lender or to one or more additional banks or financial institutions the opportunity to participate in all or a portion of such unsubscribed portion of the increased Commitments pursuant to Section 2.20(b) or Section 2.20(c), as applicable.
(b) Any additional bank or financial institution that the Borrower selects to offer participation in the increased Commitments, and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees that elects to become Lenders; provideda party to this Agreement with the Borrower and the Administrative Agent (a "New Lender"), howeverby the execution of an agreement (a "New Lender Agreement") substantially in the form of Exhibit E-1, that no existing shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. The Commitment of any such New Lender shall be obligated and/or required in an amount not less than $10,000,000.
(c) Any Lender that accepts an offer by the Borrower to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) 2.20 shall, in connection therewitheach case, deliver execute an agreement whereby it agrees to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increasebound by, and (ii) certifying thataccept the benefits of, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that(a "Commitment Increase Agreement") substantially in the form of Exhibit E-2, after giving effect to such increase, it is bound by all terms of this Agreement with the Borrower and the other Loan Documents; (3) if Administrative Agent. Upon delivery to the Incremental Term Loan is being provided by an existing Administrative Agent of one or more New Lender Agreements or Commitment Increase Agreements, the Administrative Agent shall enter any such New Lender and its Commitment, or increasing Lender’s increased Commitment, in the Register and such Lender is then in possession of shall distribute a Note, then a revised Note in favor new Schedule I reflecting the Commitment of such New Lender reflecting such or increasing Lender’s increased Commitment after giving effect to such increase; (4) if and the Incremental Term Loan is being provided by a new LenderCommitments, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contraryas increased.
(d) The Borrowers, Guarantors, effectiveness of any Commitment Increase Agreement or New Lender Agreement shall be contingent upon receipt by the Administrative Agent of such corporate resolutions and certificates as to no Default and accuracy in all material respects of the Lenders shall enter into an amendment of representations and warranties made by the Borrower in this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriaterequest with respect thereto, in the reasonable opinion of each case in form and substance reasonably satisfactory to the Administrative Agent.
(e) Additional Loans made on or after the date that any bank or financial institution becomes a New Lender pursuant to Section 2.20(b) or any Lender's Commitment is increased pursuant to Section 2.20(c), (the "Re-Allocation Date") shall be made pro rata based on their respective Commitments in effect on or after such Re-Allocation Date (except to the extent that any such pro rata borrowings would result in any Lender making an aggregate principal amount of Loans in excess of its Commitment, in which case such excess amount will be allocated to, and made by, such New Lender and/or Lenders with such increased Commitments to the extent of, and pro rata based on, their respective Commitments), and continuations of Loans outstanding on such Re-Allocation Date shall be effected by repayment of such Eurodollar Loans on the last day of the Interest Period applicable thereto and the making of new Loans pro rata based on the respective Commitments in effect on and after such Re-Allocation Date. In the event that on any such Re-Allocation Date there is an unpaid principal amount of Eurodollar Loans, such Loans shall remain outstanding with the respective holders thereof until the expiration of their respective Interest Periods (unless the Borrower elects to prepay any thereof in accordance with the applicable provisions of this Agreement), and interest on and repayments of such Loans will be paid thereon to the respective Lenders holding such Loans pro rata based on the respective principal amounts thereof outstanding.
(f) Notwithstanding anything to the contrary in this Section 2.20, (i) no Lender shall have any obligation to increase its Commitment unless it agrees to do so in its sole discretion and (ii) the aggregate amount of such increase in the Commitments shall not exceed $1,000,000,000.
(g) If requested, the Borrower shall execute and deliver a Note or Notes to each New Lender and replacement Notes to Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate signing a Commitment Increase Agreement in the reasonable opinion amount of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loansaid Lenders’ Commitments.
Appears in 1 contract
Sources: Credit Agreement (Phillips 66)
Increase in Commitments. The Borrower may from time to time add one or more tranches of term loans or increase outstanding tranches of term loans (each an “Incremental Term Facility”) and/or increase commitments under any Revolving Facility (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Borrower, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (and, for the avoidance of doubt, shall not require the consent of any other Lender) (each an “Incremental Facility Amendment”); provided that:
(a) Provided there exists the aggregate principal amount of all Incremental Facilities established under this Section 2.16 shall not exceed the sum of:
(i) $250,000,000; plus
(ii) an unlimited amount so long as, in the case of this clause (ii), after giving effect to the relevant Incremental Facility on a Pro Forma Basis, the Consolidated Secured Net Leverage Ratio does not exceed an amount to be decided by the Borrower and the Administrative Agent on or prior to the Closing Date (the “Incremental Incurrence Ratio”) (assuming the full amount of such Incremental Facility is fully drawn and without “netting” the cash proceeds of such Incremental Facility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Borrower); provided that any Incremental Facility may be incurred under either sub-clauses (i) or (ii) of this clause (a) as selected by the Borrower in its sole discretion and if any Incremental Facility is intended to be incurred in part under both sub-clauses (i) and (ii) then the permissibility of the portion of such Incremental Facility to be incurred under sub-clause (ii) shall first be determined without giving effect to the portion of such Incremental Facility incurred under sub-clause (i), but giving full Pro Forma Effect to the use of proceeds of the entire amount of such Incremental Facility;
(b) no Default or Event of Default shall exist on the effective date of any Incremental Facility or would exist after giving effect to any Incremental Facility;
(c) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(d) each Incremental Facility shall be in an aggregate principal amount of at least $10,000,000 and each Incremental Facility Commitment shall be in a minimum principal amount of at least $1,000,000, in the case of an Incremental Revolving Increase, and at least $1,000,000 in the case of an Incremental Term Facility (or, in each case, such lesser amounts as the Administrative Agent may agree);
(e) each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(f) the Borrower shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such increase signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to such increase, (1) the representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) as of such earlier date, (2) no Default would result therefrom), upon notice from or Event of Default exists and (3) such Incremental Facility or Incremental Facilities have been incurred in compliance with this Agreement;
(ii) such amendments to the Collateral Documents as the Administrative Borrower Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility; and
(iii) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (which shall promptly notify the Lendersincluding each Person providing an Incremental Facility Commitment), dated as of the Borrowers may effective date of such Incremental Facility;
(g) the Administrative Agent shall have received documentation from time each Person providing a commitment in respect of such requested Incremental Facility or Incremental Facilities (each such commitment, an “Incremental Facility Commitment”) evidencing its Incremental Facility Commitment and its obligations under this Agreement in form and substance reasonably acceptable to timethe Administrative Agent;
(h) in the case of an Incremental Term Facility, request the Administrative Agent, in consultation with the Borrower, shall have determined whether such Incremental Term Facility consists of a new tranche A term loan (an “Incremental Tranche A Term LoanFacility”) or a tranche B term loan (an “Incremental Tranche B Term Facility”);
(i) in the case of an aggregate amount Incremental Term Facility that is an Incremental Tranche A Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for all such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Term A Loans and (2) the final maturity date of any then outstanding Incremental Tranche A Term Loan; and
(B) the Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term A Loan or any then outstanding Incremental Tranche A Term Loan;
(ii) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(iii) such Incremental Term Facility shall share ratably in any prepayments of the Term A Loan and any then outstanding Incremental Tranche A Term Loan pursuant to exceed $150,000,000Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term A Facility) and shall have ratable voting rights as the Term A Facility (or otherwise provide for more favorable voting rights for the Term A Facility); and
(iv) if such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the terms applicable to the Term A Loan, shall be reasonably acceptable to the Administrative Agent;
(j) in the case of an Incremental Term Facility that is an Incremental Tranche B Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the later of (1) the Maturity Date with respect to the Term B Loan and (2) the final maturity date of any then outstanding Incremental Tranche B Term Loan; provided that in the event the Term B Loans are no longer outstanding, the final maturity of such Incremental Tranch B Term Loan shall not be earlier than the Maturity Date with respect to the Term A Loans;
(B) the Weighted Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term B Loan or any then outstanding Incremental Tranche B Term Loan;
(C) if the All-In-Yield on such Incremental Term Facility exceeds the All-In-Yield on the Term B Loan or any then outstanding Incremental Tranche B Term Facility by more than 50 basis points per annum, then the Applicable Rate or fees payable by the Borrower with respect to the Term B Loan and each then outstanding Incremental Tranche B Term Facility shall on the effective date of such Incremental Term Facility be increased to the extent necessary to cause the All-In-Yield on the Term B Loan and each then outstanding Incremental Tranche B Term Facility to be not more than 50 basis points less than the All-In-Yield on such Incremental Term Facility (such increase to be allocated as reasonably determined by the Administrative Agent in consultation with the Borrower); provided, however, that the Borrowers provisions of this clause (C) shall not apply to any Incremental Term Facility provided after the first twelve (12) months following the Closing Date;
(ii) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;
(iii) such Incremental Term Facility shall share ratably in any prepayments of the Term B Loan and any then outstanding Incremental Tranche B Term Loan pursuant to Section 2.06 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for the then outstanding Term Facilities); and
(iv) if such Incremental Term Facility consists of one or more new tranches of term loans, the other terms thereof, if not consistent with the terms applicable to the Term B Loan, shall be reasonably acceptable to the Administrative Agent;
(k) in the case of any Incremental Revolving Increase with respect to the Revolving Facility:
(i) such Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins, provided that, subject to clause (ii) below, such Incremental Revolving Increase may be issued with a utilization fee and/or additional unused fee payable solely to the Lenders under such Incremental Revolving Increase) applicable to the Revolving Facility; and
(ii) the existing Lenders under the Revolving Facility shall on the effective date of such Incremental Revolving Increase make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility to the Lenders providing such Incremental Revolving Increase and the Administrative Agent may make such adjustments to the Register as are necessary so that, after giving effect to such assignments and adjustments, each Lender under the Revolving Facility (including the Lenders providing such Incremental Revolving Increase) will hold revolving loans and participation interests in Letters of Credit and Swing Line Loans under the Revolving Facility equal to its pro rata share thereof; and
(l) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis to (without “netting” the cash proceeds of such Incremental Term LoanFacility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Borrower and assuming, in the case of any Incremental Facility that consists of an Incremental Revolving Increase, the full amount of such Incremental Facility is fully drawn) the Loan Parties would be in compliance with Pro Forma Compliance; provided, further, that the financial covenants conditions set forth in Section 6.10; and provided further that any Term Loan (i) shall rank pari passu in right of payment with the existing Term Loans and shall have the same benefits of any additional guaranties or collateral and (ii) foregoing proviso shall be treated substantially subject to the same as (and provisions of Section 1.10 in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other terms of such Incremental Term Loan. The aggregate amount case of any Incremental Term Loan hereunder Facility used to finance a Limited Condition Acquisition. The Incremental Facility Commitments and credit extensions thereunder shall constitute Commitments and Credit Extensions under, and shall be in a minimum amount of $10,000,000 (entitled to all the benefits afforded by, this Agreement and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loanother Loan Documents, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) and shall, in connection therewithwithout limiting the foregoing, deliver to benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents. The Lenders hereby authorize the Administrative Agent a new commitment agreement in form to enter into, and substance satisfactory the Lenders agree that this Agreement and the other Loan Documents shall be amended by, such Incremental Facility Amendments to the extent (and only to the extent) the Administrative Agent and its counsel.
(b) If deems necessary in order to establish Incremental Facilities on terms consistent with and/or to effect the Commitments are increased provisions of this Section 2.16. This Section 2.16 shall supersede any provisions in accordance with this Section, Section 10.01 to the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loancontrary. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver each Lender as to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate effectiveness of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee)Facility Amendment.
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term Loan. The Incremental Term Loan Amendment, without the consent of any other Lender, may 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, the Lenders and the Borrowers, to implement to terms of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loan.
Appears in 1 contract
Sources: Credit Agreement (Ii-Vi Inc)
Increase in Commitments. (a) Provided there exists no Default (SEI may at any time and no Default would result therefrom), upon notice from the Administrative Borrower to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to time, by delivery to the Administrative Agent of a written notice signed by a Responsible Officer of SEI (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the addition of a new tranche of term loan loans (an “Incremental Term LoanFacility”) or an increase in the Aggregate Commitments (an aggregate amount for all “Incremental Revolving Commitment”) or a combination thereof; provided that at the time of any such request and upon the effectiveness of the Incremental Term Loans not Facility Amendment referred to exceed $150,000,000; providedbelow, however(i) no Default or Event of Default shall exist, that the Borrowers and (ii) SEI shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in pro forma compliance with the financial covenants set forth in
Section 7.01 (as demonstrated in Section 6.10; a Compliance Certificate executed by a Responsible Officer of SEI). Each Incremental Term Facility or Incremental Revolving Commitment shall be in an aggregate principal amount not less than $15,000,000 (or such lesser amount as may be acceptable to the Administrative Agent), and provided further that any the aggregate principal amount of all such Incremental Term Loan Facilities and Incremental Revolving Commitments shall not exceed $30,000,000. Each Incremental Term Facility (ia) shall rank pari passu or junior in right of payment and of security with the existing Loans (and any such Incremental Term Loans and Facility which is junior in right of payment shall have customary second lien, subordination, standstill and other provisions reasonably acceptable to the same benefits Administrative Agent), (b) shall not mature earlier than the Maturity Date, (c) shall have a weighted average life and contain terms as to prepayments and amortization that are acceptable to the Administrative Agent and, in the event of any additional guaranties or collateral such Incremental Term Facility greater than $25,000,000, have pricing acceptable to the Administrative Agent, and (iid) shall be treated substantially the same as (and not contain additional or different covenants or financial covenants which are more restrictive in any event no more favorably than) material respect than the existing Term Loans. The applicable Lenders shall approve covenants in the maturity, amortization, pricing, funding and other terms Loan Documents at the time of the incurrence of such Incremental Term LoanFacility unless either such covenants benefit all of the Lenders or are otherwise consented to by the Administrative Agent. The aggregate Any such notice shall set forth the amount and terms of any the relevant Incremental Term Loan hereunder Facility or Incremental Revolving Commitment requested by SEI and to be agreed by any Lenders or Additional Lenders (as herein defined) under such Incremental Term Facility or providing such Incremental Revolving Commitment. SEI may arrange for one or more banks or other financial institutions or, in the case of an Incremental Term Facility, institutional investors, each of which shall be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, however, that no existing Lender shall be obligated and/or required to accept an increase in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental Term Loan Commitment”) shall, in connection therewith, deliver to the Administrative Agent a new commitment agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance and, with this Sectionrespect only to Incremental Revolving Commitments, the Administrative Agent Swing Line Lender and the Borrowers shall determine L/C Issuer (any such bank or other financial institution being called an “Additional Lender”), to extend commitments under the effective date (the “Incremental Term Loan Effective Date”) Facility or provide a portion of the Incremental Revolving Commitment, and the final allocation each existing Lender shall be afforded an opportunity, but shall not be required, to provide a portion of any such Incremental Term Facility or provide a portion of such Incremental Term LoanRevolving Commitment. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders Commitments in respect of the final allocation of such any Incremental Term Loan Facility or any Incremental Revolving Commitment shall become Commitments under this Agreement, and the Incremental Term Loan Effective Date and Schedule 2.01 hereto each Additional Lender shall be deemed amended to reflect such increase and final allocation. As become a condition precedent to such increaseLender under this Agreement, in addition to any deliveries pursuant to subsection an amendment (aan “Incremental Facility Amendment”) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms thatand, after giving effect to such increaseas appropriate, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided , executed by an existing Lender, and such Lender is then in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of this Agreement and the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured by the other Loan Documents (the “Incremental Term Loan Amendment”), and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Agent. An Incremental Term Loan. The Incremental Term Loan AmendmentFacility Amendment may, without the consent of any other LenderLenders, may effect such amendments to this Agreement and the other Loan Documents as may to the extent (but only to the extent) necessary to effect the provisions of this Section. The effectiveness of any Incremental Facility Amendment shall be necessary or appropriate, in subject to the reasonable opinion satisfaction on the date thereof of each of the Administrative Agent, the Lenders and the Borrowers, conditions set forth in Section 4.02 (it being understood that all references to implement to terms “date of the Incremental Term Loan, including amortization, pricing, maturity, and applicable Credit Extension” in such other technical amendments as may Section 4.02 shall be necessary or appropriate in deemed to refer to the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment effective date of such Incremental Facility Amendment). The proceeds of any Incremental Term LoanFacility or any Incremental Revolving Commitment will be used for working capital, capital expenditures and other general corporate purposes not in contravention of any Law or of any Loan Document, other than for the call of, or tender for, all or substantially all of the Senior Indenture Notes permitted by Section 7.17(a). No Incremental Revolving Commitment shall increase the sublimit for Letters of Credit or Swing Line Loans without the consent of the L/C Issuer or the Swing Line Lender, as applicable. This Section shall supersede any provisions in Sections 2.13 or 10.01 to the contrary.
Appears in 1 contract
Increase in Commitments. (a) Provided there exists At any time prior to the Business Day immediately preceding the Term Loan Maturity Date, the Borrower shall have the right, in consultation and coordination with the Agent, to request (by written notice to the Agent), one or more increases in the amount of the Term Loan Commitments (each such increase, a “Term Loan Commitment Increase”), provided that;
(i) at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below and the date that such Term Loan Commitment Increase becomes effective, no Default (or Event of Default shall have occurred and no Default be continuing or would result therefrom);
(ii) all representations and warranties contained in this Agreement shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on the date that such Term Loan Commitment Increase becomes effective (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) on such date, upon notice from except that any representation and warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date;
(iii) the Administrative Borrower to shall be in pro forma compliance with the Administrative Agent covenants in Section 6.12;
(which iv) each Term Loan Commitment Increase shall promptly notify be in a combined minimum principal amount of $5,000,000;
(v) the Lenders), the Borrowers may from time to time, request a new term loan (an “Incremental Term Loan”) in an aggregate amount for of all such Incremental Term Loans Loan Commitment Increases made available pursuant to this Section 2.15 shall not to exceed $150,000,000100,000,000; provided, however, that and
(vi) the Borrowers Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating thatcertificate executed by a Responsible Officer of the Borrower, upon giving effect on a Pro Forma Basis to such Incremental Term Loan, the Loan Parties would be in certifying compliance with the financial covenants set forth in Section 6.10; and provided further that any Term Loan requirements of each of the preceding clauses (i) - (v).
(b) Each notice from Borrower pursuant to this Section 2.15 shall rank pari passu in right of payment with set forth the existing Term Loans requested amount and shall have the same benefits of any additional guaranties or collateral and (ii) shall be treated substantially the same as (and in any event no more favorably than) the existing Term Loans. The applicable Lenders shall approve the maturity, amortization, pricing, funding and other proposed terms of such Incremental Term Loan. The aggregate amount of any Incremental the relevant Term Loan hereunder shall Commitment Increase.
(c) Term Loan Commitment Increases may be in a minimum amount of $10,000,000 (and in integral multiples of $10,000,000 in excess thereof). To achieve the full amount of a requested Incremental Term Loan, the Borrowers may solicit increased commitments from existing Lenders and/or invite additional Eligible Assignees to become Lenders; provided, howeverby any existing Lender or by any other Eligible Assignee (any such other bank or other financial institution being called an “Additional Lender”), provided that no existing Lender shall be obligated and/or required to accept an increase provide any Term Loan Commitment Increase, unless it so agrees in its Commitment pursuant to this Section 2.12 unless it specifically consents to such increase sole discretion. Commitments in writing. Any Lender or Eligible Assignee agreeing to increase its Commitment or provide a new Commitment pursuant to this Section 2.12 (an “Incremental respect of Term Loan Commitment”) shall, Commitment Increases shall become Commitments (or in connection therewith, deliver the case to the Administrative Agent a new commitment agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(b) If the Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such Incremental Term Loan. The Administrative Agent shall promptly notify the Administrative Borrower and the Lenders of the final allocation of such Incremental Term Loan and the Incremental Term Loan Effective Date and Schedule 2.01 hereto shall be deemed amended to reflect such increase and final allocation. As a condition precedent to such increase, in addition to any deliveries pursuant to subsection (a) above, the Borrowers shall deliver to the Administrative Agent each of the following in form and substance satisfactory to the Administrative Agent: (1) a certificate of each Loan Party dated as of the Incremental Term Loan Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such Incremental Term Loan, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct as of such earlier date, and except that for purposes of this Section 2.12, the representations and warranties contained in subsections (a) and (b) of Section 5.01 shall be deemed to refer to the most recent financial statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists; (2) a statement of reaffirmation from each Loan Party pursuant to which each such Loan Party ratifies this Agreement and the other Loan Documents and acknowledges and reaffirms that, after giving effect to such increase, it is bound by all terms of this Agreement and the other Loan Documents; (3) if the Incremental Term Loan is being provided by an existing Lender, and such Lender is then an increase in possession of a Note, then a revised Note in favor of such Lender reflecting such Lender’s Commitment after giving effect applicable Commitment) under this Agreement pursuant to such increase; (4) if the Incremental Term Loan is being provided by a new Lender, a Note in favor of such Lender if so requested by such Lender; and (5) payment of any applicable fee related to such increase (including, without limitation, any applicable arrangement, upfront and/or administrative fee).
(c) This Section shall supersede any provisions in Sections 2.10 or 10.01 to the contrary.
(d) The Borrowers, Guarantors, Administrative Agent and the Lenders shall enter into an amendment of (each, an “Incremental Amendment”) to this Agreement and and, as appropriate, the other Loan Documents as necessary to evidence such Incremental Term Loan or to have it be guaranteed and secured Documents, executed by the other Loan Documents (the “Incremental Term Loan Amendment”)Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and all Lenders not providing the Incremental Term Loan hereby consent to such limited scope amendment without future consent rights, provided that the pricing and maturity shall be determined by the Borrowers and the Lenders. Additionally, the Borrowers, Guarantors and each Lender shall execute and deliver to Administrative Agent any other documentation as the Administrative Agent shall reasonably specify to evidence, guarantee or secure such Incremental Term LoanAgent. The Incremental Term Loan AmendmentAmendment may, without the consent of any other LenderLenders, may effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, the Lenders Agent and the BorrowersBorrower, to implement effect the provisions of this Section 2.15.
(d) The effectiveness of any Incremental Amendment shall be subject to terms (i) the delivery of an acknowledgement in form and substance reasonably satisfactory to the Agent and executed by each Guarantor acknowledging that such Term Loan Commitment Increases shall constitute (and be included in the definition of) “Obligations” under each Guaranty of such Guarantor and (ii) the delivery by the Credit Parties of such technical amendments, modifications and/or supplements to the respective Loan Documents as are reasonably requested by the Administrative Agent to ensure that such Term Loan Commitment Increases (and related Obligations) are entitled to the benefits of the Incremental Term Loan, including amortization, pricing, maturity, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, the Lenders and the Borrowers in connection with the establishment of such Incremental Term Loanrelevant Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (CNL Healthcare Properties, Inc.)